Blumen v. Clayburgh

[64]

NOTJBSE, P. J.

Plaintiff sued for damages for fraud arising from the sale of securities held under a pledge. The defendants' demurrer to the complaint was sustained with leave to amend but plaintiff declined to amend and judgment was entered for the defendants.

There is one debatable question involved in the appeal not stated by either party but nevertheless determinative and that is whether the complaint sufficiently pleads the times and circumstances under which the facts constituting the fraud were brought to plaintiff’s knowledge so that the court could determine whether the complaint was filed within the period covered by the statute of limitations.

The complaint alleges that plaintiff incurred an obligation with certain defendants engaged as stockbrokers in the city and county of San Francisco through the purchase of stocks on margin, and to secure his indebtedness deposited with the brokers certain securities; that when the indebtedness amounted to about $3,500 the brokers sold the securities for approximately $5,800, satisfied the indebtedness and paid the balance over to the defendant Fidelity and Deposit Company; that this sale was consummated on March 2'5, 1926, at a time when the plaintiff was a fugitive from justice, having been indicted by the San Francisco grand jury for grand theft on February 18, 1926; that on May 1, 1926, plaintiff was located in London, England, arrested, and returned to San Francisco to stand trial under this indictment; that the plaintiff arrived in San Francisco on August 11, 1926, and remained in the county jail of that county from said date until April 29, 1927, when he was removed to the state penitentiary at San Quentin pursuant to sentence following a conviction on March 12, 1927, on that indictment; that he remained in the state penitentiary from April 29, 1927, until June 19, 1933, at which time he was released on parole. The complaint in this action was filed March 22, 1934. The foregoing facts and no more are relied on to support the bald allegation that the alleged fraud was “not known or discovered by the said plaintiff until the month of May, 1927 ’ ’. At this point it should be noted that plaintiff was delivered to the state penitentiary on April 29th and that the alleged discovery in “the month of May” might have occurred two days after his delivery; hence his discovery during the first days of his