Hitchcock v. McElrath

McFarland, J. This is an action to recover for the wrongful conversion of certain shares of capital stock of the Saucelito Land and Ferry Company, a corporation. Judgment went for plaintiff, and defendant appeals therefrom, and from an order denying his motion for a new trial.

Appellant relies mainly, first, upon a variance between the averments of the complaint and the proofs, and, second, upon errors committed in overruling his objections to certain testimony touching the value of the property alleged to have been converted.

1. The complaint avers generally that plaintiff loaned the stock to defendant, and that he converted it to his own use. The proofs show that it was loaned for the special purpose of being used by defendant to raise money to pay and take up a certain promissory note, of which defendant was maker and plaintiff was the accommodation indorser, and further, that defendant did not use it for that purpose, but converted it to his own use. This is claimed by appellant to have been a fatal variance. But appellant, in his answer, denied that he borrowed the stock at all; denied that respondent owned it at the time of the alleged conversion; and averred that [567]appellant had bought the stock of respondent and was the owner of it. Under these circumstances it is impossible to see how the variance was one which “actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” (Code Civ. Proc., sec. 469.) We think, therefore, that the position taken by appellant on this branch of the case is not tenable.

2. There was great difficulty in determining the value of the property converted. As there had been no movements of sale and purchase of the stock of the corporation, it had not that kind of market value which attaches to stock frequently dealt in. Recourse was had, therefore, to the value of the property owned by the corporation. This consisted, in part, of wharves and ferry franchises, but mainly in land lying in and near the town of Saucelito, on the water-front of the bay, and running back into the hills.

The corporation was a land company, and a main branch of its business was to sell its land at Saucelito in small lots for residences as purchasers could be found. Under these circumstances the purpose of counsel for respondent, at the trial, seemed to be to induce the court, as far as possible, to allow testimony tending to show what the land was worth if sold in small quantities and in the usual course of business, and supposing the affairs of the company to be properly managed. On the other hand, the effort of counsel for appellant seemed to be to confine the testimony strictly to the question, How much would the land sell for as a whole, at forced sale, upon twenty days’ notice? The court did not fully adopt the theory of respondent. It went, however, too far in that direction; and if it appeared at all that the value found by the jury rested upon answers of some of respondent’s witnesses to one or two questions improperly admitted, there might be ground for a reversal of the judgment. There was, however, ample evidence—and considerable