Kallem v. Vincent

STURTEVANT, J.

The plaintiff commenced an action in conversion against the defendants. Later she amended her complaint. The defendants appeared and answered the complaint as amended and the trial was had before the trial court sitting with a jury. At the end of the plaintiff’s case the defendants made a motion for a nonsuit. The court made an order granting the motion and the plaintiff has appealed, bringing up typewritten transcripts. In plaintiff’s amended complaint she alleged that the defendants were partners transacting a general stock brokerage business in San Francisco; that on the twenty-first day of July, 1926, plaintiff was the owner of sixty units of the stock of the National Ice Cream Company; that each unit consisted of one share of preferred stock of the value of $100 per share and one share of common stock of no par

value;

that said stock was of the value of $6,000; that on July 21, 1926, plaintiff agreed to purchase from defendants forty

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additional units of the same stock and agreed to pay $4,000 therefor; that thereupon she executed her promissory note payable six months after date for the sum of $4,000, bearing interest at eight per cent per annum; that thereafter she delivered to defendants said promissory note; that thereafter on August 4, 1926, defendants converted said hundred units to their own use; and "That plaintiff has made demand upon said defendants for the return of said units of said corporation stock, but to return the same defendants have refused and still refuse to return or deliver to said plaintiff the said one hundred units of said corporation stock.” The defendants interposed several denials, but they did not deny the paragraph just quoted. Excepting the allegation of conversion the plaintiff introduced evidence tending to support each and all of her allegations. In doing so it transpired that when she executed the promissory note in the sum of $4,000 she brought forward her certificates evidencing the said sixty units, indorsed the certificates in blank, and delivered them to the defendants to hold as security for the payment of the above-mentioned promissory note. After the defendants received the certificates for the said sixty shares the defendants held, together with said certificates, many other certificates evidencing stock in the same corporation. Of the stock represented by said certificates the defendants owned several hundred shares in their own right. On August 3, 1926, the defendants received an order for 100 units. That order came from H. D. McCoy. The defendants thereupon sold and delivered to McCoy the certificates for sixty shares so delivered to the defendants by the plaintiff and certain other certificates making up the total of 100 units as contained in the order of McCoy. At no time did the plaintiff pay any of the principal or interest represented by the said promissory note. About March 20, 1928, the plaintiff borrowed from the defendants $2,000 and thereupon a new note dated March 20, 1928, for the principal sum of $6,000 bearing interest at the rate of seven per cent per annum was executed by the plaintiff to the defendants. It was agreed that the note last mentioned was to take the place of the $4,000 note and was also to evidence the $2,000 so borrowed from the defendants by the plaintiff. The note in form is a collateral note and recites that it was secured by 100 units of the stock of the cor