Kirkland v. Levin

WORKS, J.

The two actions above entitled were tried upon the same evidence, although there was in .the trial court no order for their consolidation. There is here, however, a stipulation that they may be heard together, and the appeals stand before us under one number. The cases will, therefore, be treated in a single opinion.

Each of the plaintiffs was at one time a stockholder in a certain corporation. The stock holdings of each were advertised for sale for unpaid assessments. Defendant purchased at the assessment sale the stock thus advertised. Shortly thereafter plaintiffs repurchased the stock from the

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defendant at a total paid price of $650. It transpired that the assessment sale was void and plaintiffs commenced the above-entitled actions for the purpose of recovering from defendant the amount named. In the respective actions plaintiffs had judgment and defendant appeals.

The complaint in each of the actions contains the following allegations: “That defendant then and there,” that is, when the sale was made by him to plaintiffs, “represented to plaintiff that the said sale of plaintiff’s shares [at the assessment sale] was a good and valid sale and that he, defendant, then and there by virtue of his purchase at said alleged sale had become and that he was then the owner of said . . . shares of stock. . . . That plaintiff . . . then and there believed the representations made by defendant to the effect that said sale was a good and valid sale, . . . that relying upon the representations of defendant as to the validity of said alleged sale and not otherwise plaintiff paid defendant [his part of the $650].” The trial court found that these averments were true and it is contended by appellant that the finding was not sustained by the evidence. That the finding is not supported is conceded by respondents, but they take the view that the allegations which we have quoted are surplusage and that any finding either that they were true or untrue was immaterial to the real controversy between the parties.

Respondents contend that they were entitled to judgment upon either of several theories. They insist, in the first place, that the judgments in their favor were properly recoverable as upon an implied warranty under the terms of Civil Code, section 1765, which provides: “One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unencumbered title thereto.” We are convinced that this contention is sound. Shares of stock are personal property (Civ. Code, sec. 324; 6 Cal. Jur. 732) and they are therefore directly within the letter of section 1765. They seem as clearly to come within the spirit of the enactment. Such is the rule in other states (14 C. J. 690). Appellant advances the argument that