Cooper v. Tanner

MARKS, J.

Respondent was the owner of an orange grove near the city of Corona in the county of Riverside. She was also the owner of 75% shares of the capital stock of the Temescal Water Company. This stock was found in the possession of appellant and upon his refusal to deliver it to her, this action was brought to compel the cancellation of certificate number 3725 issued for it, and the issuance of a duplicate by the Water Company. Judgment was entered for respondent, and appellant has prosecuted this appeal:

Appellant presents two grounds upon which he bases his claim for a reversal of the judgment; first, that the water stock in question was not appurtenant to the land owned by respondent, and, second, that “where one of two inno

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cent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer”. (Sec. 3543, Civ. Code.)

Under the conclusions which we have reached it makes no difference whether or not the water stock was appurtenant to the land. Therefore, we will assume, without deciding, that the contention of appellant is correct and that the stock was not appurtenant to the land.

The evidence discloses that respondent purchased this stock in 1912. On August 10, 1921, the records of the company show a receipt for it signed by F. P. Cooper, her son, and son-in-law of appellant. It does not appear that respondent ever had possession of the certificate. F. P. Cooper died in 1929, before the trial of this action.

In 1922, F. P. Cooper was indebted to the Long Beach National Bank in the sum of $3,500. He had pledged the water stock, together with other stock .belonging to his mother, as security for the loan, without her knowledge or consent. In September of the same year the bank was about to foreclose the pledge. On October 7, 1922, appellant loaned Cooper $3,500 with which to pay the bank and was given possession of certificate number 3725 representing this water stock. This certificate had been issued in the name of Mrs. Anna C. Cooper, admittedly the respondent, although the first name appears to be misspelled. On the back of the certificate was the following indorsement:

“For value received-hereby sell, assign and transfer unto Long Beach Natl Bank, Long Beach, Cal Shares of the Capital Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint-to transfer the said Stock on the books of the within named Corporation with full power of substitution in the premises.