Baird v. Olsheski

SPENCE, J.

In this action for conversion of certain capital stock, judgment was entered in favor of defendant, from which judgment plaintiff appeals.

On the trial no evidence was offered by defendant. There is no dispute regarding the facts hereinafter set forth, which facts were proved either by the uncontradicted testimony introduced by plaintiff or by stipulation. Plaintiff borrowed the sum of $500 from defendant and as security for a promissory note in that amount delivered to defendant a certificate duly indorsed for 100 shares of the capital stock of Baird-Bailhache Company. The note bore the notation “100 shares Baird-Bailhache Co. stock attached”. The stock was of the approximate value of $1,000. At the time of the transaction it was orally agreed by the parties that defendant would not sell the stock or take any action to recover the debt without notifying plaintiff. The note matured and defendant, without notice to plaintiff, commenced an action on the note and recovered judgment by default. No mention of the pledged property was made in this action. Thereafter, and without notice to and without the knowledge of plaintiff, defendant caused execution to be levied and said stock was sold. Defendant purchased the stock on the execution sale for the sum of $5. Thereafter the balance due on the judgment amounting to $531.15 was paid by plaintiff to defendant and a demand was made by plaintiff for the return of the stock, which was refused.

The present case was tried on plaintiff’s second amended complaint. The sufficiency of that complaint was passed upon in

Baird

v.

Olsheski,

102 Cal. App. 452 [283 Pac. 321], which decision has become. the law of the case. In our opinion, the undisputed facts proved upon the trial sustained the material allegations of that complaint. The trial court, however, apparently adopted respondent’s contention that “the agreement alleged by plaintiff as to forbearance and special notice must be in writing”. The findings were therefore against the execution of such an agreement and

[111]

against the existence of any violation of any alleged agreement.