Lowe v. Ozmun

ALLEN, J.

Action for conversion. Judgment for plaintiff, from which judgment and an order denying a new trial defendant appeals.

The complaint, which appears to have been filed May 9, 1900, alleges that in 1896 plaintiff was the owner of certain bonds of the Pasadena Consolidated Gas Company of the value of $20,000, and bonds of the Pasadena and Mt. Wilson Railway Company of the value of $10,000; that at that date he pledged the same with A. M. Ozmun to secure an indebtedness of $10,801.66. That said Ozmun, on the tenth day of May, 1897, unlawfully converted said bonds to his own use, at which date plaintiff’s indebtedness to Ozmun was $11,230.-86, and no more. That on the eleventh day of May, 1897, plaintiff demanded from defendant the said bonds, or the value thereof, less the sum so due and owing from plaintiff, and that Ozmun refused either to return, said bonds or pay their value to plaintiff, to the damage of plaintiff in the sum of $18,769,14, no part of which has been paid. That Ozmun died in 1899, and defendant who is the executor of the last will and testament of deceased, published notice to creditors; and thereafter plaintiff presented his claim duly verified for the above-named sum, which was rejected. A copy of said claim is attached to the complaint, which shows the indebtedness originally existing, the amount and value of the bonds, and the balance claimed to be due after deducting such indebtedness.

A demurrer to this complaint, which involves not only its sufficiency as a pleading, but also the bar of section 339, Code of Civil Procedure, was considered by our supreme court upon

[390]

appeal in

Lowe

v.

Ozmun,

137 Cal. 257, [70 Pac. 87], and the complaint was there held to state a cause of action and that the claim therein set out was not barred by the provisions of the statute. After the coming down of the

remittitur

defendant answered, denying the material allegations of the complaint, and by way of a separate defense set up that the indebtedness mentioned in the complaint was evidenced by a note given by plaintiff to Ozmun in the year 1896, due in one day, which note contained a clause authorizing Ozmun to sell the collateral mentioned in the complaint at public or private sale, at the option of the payee, without advertising the same or demanding payment of the debt or giving notice, and authorizing the pledgee at such sale to become the purchaser. It is alleged that'demand was made upon plaintiff for the payment of the debts, which being refused, on May 4, 1897, the pledgee caused to be published in the “The Evening Express” of that date, a notice that on May 10, 1897, at 2 o’clock P. M., he would sell said collaterals at public auction to the highest bidder; that pursuant thereto he sold the same for $4,748, being the full value of the bonds, and credited the same upon the note, and that the balance remains unpaid. And for a further defense defendant sets up the pleadings and records in an action, brought at some date not apparent of record, but before March 27, 1898, by plaintiff and other stockholders of the Consolidated Gas Company, a corporation, to vacate and annul a certain sale of stock of said gas company theretofore made oh account of the nonpayment of a delinquent assessment levied upon such stock by the board of directors, basing their right of action, in part, upon the claim that the individual defendants to such action and directors of said corporation were the owners of a large amount of the bonds of said gas company, and that they had conspired together to levy such assessment for the sole purpose of increasing the value of such bonds, and without any other necessity for such assessment, and it was alleged in said complaint that Ozmun, on May 10, 1897, converted $20,000 of such bonds, the property of Lowe, to the use of himself, the said Ozmun, and that said bonds so converted were held as collateral to a debt of Lowe, and by such conversion all obligations of Lowe