37 P. 652 | Cal. | 1894
This appeal is from the judgment and from an order refusing a new trial. The complaint shows that James A. Brown died testate October 26, 1889, in the county of Santa Barbara, leaving his widow, Catherine J. Brown, his executrix; that said will was duly admitted to probate, the said Catherine J. appointed executrix, and that she duly qualified as such, and took possession of the property of the estate, consisting in part of certain personal property, which is specifically described in the complaint; that on the fifteenth day of April, 1890, while the said executrix was lawfully possessed of said property, as the property of the estate, defendants “wrongfully and without right took and carried away said personal property, and the whole thereof, and converted and disposed of the same to their own use.” Said property was at the time of the value of $6,000. Catherine J. Brown died April 17, 1892, not having closed the administration.
Respondent raises a preliminary point, to the effect that plaintiff is entitled to no relief, because his complaint shows that his cause of action is barred by the statute of limitations, and the demurrer on this ground should have been sustained. If the demurrer were well taken, it would not follow that respondent could avail himself of the point on this appeal; but, waiving that, the point is not well taken. The question suggested is whether an action for the conversion of goods is barred by subdivision 3 of section 338 of the Code of Civil Procedure. Respondent claims that such an action is not covered by that section, and is therefore included in section 339, and is barred in two years. The complaint shows that the
The cause was tried by the court without a jury, and the court found for the defendant Jack, a nonsuit having been entered as to the. bank. Several findings of fact are excepted to as not sustained by the evidence. Among such findings are the following: (1) That the personal property was never delivered to Jack, although it is admitted that a bill
1. It seems that Mrs. Brown was indebted to the bank, of which Jack was president; that it was agreed between Jack and Mrs. Brown that the property should be conveyed to Jack as security and immediately sold, and the proceeds paid on Mrs. Brown’s personal indebtedness to the.bank. In pursuance of this agreement an absolute bill of sale was executed, and Sandercock was selected to sell the property, with the consent of Mrs. Brown. Having delivered the bill of sale to Jack, and agreed upon Sandercock as a proper person to conduct the sale, Mrs. Brown prepared a letter to be handed by Sandercock to Bailey, her agent, and which was so delivered. It was as follows:
“Mr. S. P. Bailey—
“Dear Sir: I have made a bill of sale to Mr. Jack of the whole outfit. Mr. Sandercock, the bearer of the note, will consult you about the disposition of the outfit. If Mr. Sandercock cannot manage the disposition of the same without your help, then you will please go with him. Mr. Sandercock acts as Mr. Jack’s agent and the entire disposition must be under Mr. Sandercock’s control.
“O. J. BROWN.”
Mr. Sandercock, also, at the same time, handed Bailey a letter from Mr. Jack, as follows:
“Mr. Bailey—
“Dear Sir: This will introduce to you my friend, Mr. John G-. Sandercock. I have bought of Mrs. J. A. Brown the whole grading outfit which belonged to the late J. A. Brown, and I send him down to represent me in the premises, and to sell according to the general plan that you have arranged. You will therefore please deliver the whole business to my representative, Mr. Sandercock. I should be pleased to have you accompany Mr. Sandercock, and assist him all in your power. Mrs. Brown’s desire also is that you shall accompany Mr. S., and aid with your counsel and co-operation.
“Yours truly,
“RE. JACK.”
The court also found that Jack had not converted the property to his own use. That he took the property, by the consent of Mrs. Brown, to sell, and to apply the proceeds to the payment of her individual debt to the bank, cannot be denied. Did it amount, under the circumstances, to a conversion ? Of course, when Mrs. Brown conveyed the property to Jack in payment of her individual debt, she misappropriated it. She
The cause of action was not barred by the judgment rendered in the suit of R. E. Jack v. Catherine J. Brown. Mrs. Brown was not sued in her representative character, nor was any question raised in the case as to the right of Mrs. Brown to dispose of the property to Jack. The validity of the sale was not questioned. The action was brought to foreclose a
There was no error in granting a nonsuit as to the bank. Quite possibly, plaintiff could have shown that Jack was acting for the bank in such manner as to bind the bank, and render it jointly liable. I do not find such testimony in the record. I think the judgment of nonsuit in favor of the corporate defendant should be affirmed, but that the judgment and order in favor of defendant Jack should be reversed.
We concur: Haynes, C.; Belcher, C.
For the reasons given in the foregoing opinion the judgment of nonsuit in favor of the corporate defendant is affirmed, and the judgment and order in favor of defendant Jack are reversed.