Central National Bank v. Peck

NOURSE, P. J.

The complaint declared on a promissory note secured by a pledge of stock; after default, the pledgee sold the shares; the prayer is for the deficiency. The answer and counterclaim pleaded that the sale was fraudulent; that the shares were worth greatly in excess of the proceeds of the sale; the prayer was for .damages for conversion. Plaintiff had judgment on the pleadings. In a former trial judgment went for defendant but plaintiff was granted a new trial. The defendant appealed and the order was affirmed. (5 Cal. App. (2d) 412 [42 Pac. (2d) 663].)

The ground stated by the appellant as that involved in this appeal is: “When a pledgor seeks damages for a conversion, as distinguished from a return of the shares, he need not make tender or demand. ” The argument is also made, however, that the question of the sufficiency of his answer and cross-complaint was determined on the former appeal and that the former decision is the “law of

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the case”. The position is not tenable because the only question considered and determined on the former appeal was whether the trial court abused its discretion in granting a new trial. But this ruling did not involve any consideration of the pleadings. “The doctrine of the law of the case is limited to rulings upon questions which were actually presented and considered upon the former appeal.”

(Trower

v.

San Francisco,

157 Cal. 762, 765 [109 Pac. 617].)

The respondent also has argued questions other than that stated in appellant’s brief. It contends, and properly so, that if the motion for judgment is valid on any ground it must- be sustained. The complaint pleaded the promissory note, the pledge, the sale, and the deficiency due. The answer admitted all but the sale. In his counterclaim and cross-complaint the appellant pleaded a conversion arising out of the sale which he had denied had been made. Whether the denial should be treated as nullified by the subsequent pleadings (Poe v.

Francis,

132 Cal. App. 330 [22 Pac. (2d) 801]), or should be treated as frivolous and sham, the result is the same. An ineffectual attempt is made to deny the proceeds of the sale, but there is no denial of the amount of principal and interest alleged to be due.