The answer denies that the defendant undertook, as agent or otherwise, to purchase for plaintiff any shares of the capital stock of the Fresno Loan and Savings Bank; avers that he did, at the request of W. H. Layson, the attorney of plaintiff, procure from one Harvey Phinney five shares of said stock, and caused them to be transferred to plaintiff, for which she paid $112 per share. He denies that he was ever the owner of the stock, or had any interest therein, except that he purchased the same for $110 per share only when he found a purchaser therefor at $112 per share, and that the stock was thereupon transferred from Harvey Phinney directly to plaintiff, and that the interest of the defendant therein was but the $2 per share which he retained. Without further particularity, it may be said the answer denies all the allegations of fraud, and the facts upon which the same are predicated. The answer to the second cause of action proceeds upon the same lines as that to the first. The findings of the court negatived all the charges of false or fraudulent representations by defendant, alleged to have induced the purchase of the stock by the plaintiff; found that the defendant was not the owner of the stock purchased by plaintiff, but that he purchased the same, as the agent of plaintiff, at $110 per share, and charged her $112 per share, retaining to his own use the difference of $2 per share, amounting in the case of plaintiff to $16, which sum defendant held in trust for the plaintiff; and the latter had judgment for said sum of $16, and for her costs of suit.
The testimony in the case was sharply contradictory upon most of the issues, and, by all the precedents, the findings of the court below in such a case are conclusive here. Counsel for the appellant argues his case mainly from the standpoint of plaintiff’s testimony, rather than from a review [75]of the whole ease as made. Assuming his alleged facts as established, little difficulty would be experienced in reaching his conclusions. This we may not do, in the face of the record. Defendant admits in his answer, substantially, that he did, at the request of plaintiff, receive from one Harvey Phinney the stock in question, for which the plaintiff paid, and that he retained to himself $2 per share. This constituted him, pro tanto, the agent of the plaintiff. According to the findings of the court, this retention of $2 per share constituted the whole of defendant’s offending. Appellant, however, contends that the evidence shows that defendant was the owner of the stock, and sold the same to plaintiff, concealing the fact of such ownership, etc. It is true that there was some evidence tending to show, if taken by itself, that defendant owned the stock. But, in the interpretation which appellant places upon it, it proves too much for her case. The -agent of plaintiff was W. H. Layson, her brother. In the spring of 1893 he visited Fresno, in quest of an opportunity to invest some money for his two sisters, the plaintiffs in the two cases; called upon defendant, the teller of the bank aforementioned, with whom he had a conversation in reference to the bank and its stock; learned from defendant that a man had some of the stock for sale. Layson, on the 7th of’May, wrote defendant, asking: “Is the stock you spoke to me about still for sale, or part thereof ? What is price ? I have forgotten. ’ ’ On the eighth day of May, defendant answered, in part, as follows: “I have still twenty-seven shares on-hand.....Can sell at same price as offered you ($112 per share) if sold at once.” Later in May, Layson wrote the Fresno Savings Bank as follows: “Inclosed find draft for $896. Buy L. A. Spencer eight shares of Fresno Savings and Loan Bank stock—five shares for Fannie Price, three shares for M. A. Layson—not exceeding $112 per share. What does stock sell for in the market? [Signed] Layson.” The draft was payable to the bank. On receipt by the bank of this letter and draft, defendant went to Harvey Phinney, who had previously offered to sell stock at $110, took him to the bank, where eight shares were transferred from- Phinney to Fannie Price and M. A. Layson, as directed by their agent, W. H. Layson, and the certificates forwarded to their agent, W. H. Layson, in the name of the bank; the actions, [76]however, being formulated in the name of the bank by its teller, the defendant. On the 17th of June the bank received a like order from Lays-on for three shares, which were procured by the defendant from Phinney, through his agent, one Prank Laning, and transferred directly to plaintiff herein, as in the former case. In 1894 plaintiff ascertained that defendant had purchased the stock at $110 per share, and demanded of him the $2 per share which he had overcharged them. In response, defendant replied that: “I sold the stock to you fairly. Now, after I tell you that, practically, and, I believe, legally and morally, I owned the stock that I sold to you,” etc. We have said that, if this evidence proves that defendant was the owner of the stock, it also proves too much. On their theory, they were informed by him before the purchase that he had the stock for sale, and if they knew this, and ordered it purchased from him, it is not perceived that there was any agency on his part, or that, in the absence of fraud, they had any cause for complaint. On this theory, there is no estoppel that can be urged against defendant. The case of Bank of Woodland v. Hiatt, 58 Cal. 234, simply holds that a purchaser has a right to rely upon representations of the seller as to facts not within the purchaser’s knowledge, and the fact that the purchaser might by inquiry have obtained knowledge of the facts will not relieve the seller from responsibility. In the present case, if the seller was the owner of the stock, his first act in the premises was to inform the plaintiff of that fact. But we need not pursue this inquiry further. The court found that defendant purchased the stock as the agent of plaintiff, and that he was never the owner thereof. This finding is amply supported by the evidence. As before stated, the seller took or caused his stock to be taken to the bank, where it was indorsed and transferred by the bank to the plaintiff; and, as the bank held plaintiff’s checks for the purchase price, we may reasonably infer that it paid the sellers. The defendant was the medium through which the transaction was consummated, and the fact that the seller did not know the purchaser is, upon the showing made, a circumstance of little importance. The whole pith of the transaction may be embodied in few words: The bank in question was, as a going concern, a prosperous institution, paying large dividends. Its stock had a well-defined market value at from $110 to $115 per share, and had been much [77]higher. Soon after plaintiff’s purchase, there was a hank panic, under the pressure of which it closed its doors for a few days; then opened again, and struggled along until 1895, when, its securities and assets having shrunk greatly, it went into liquidation, and its stock fell to, say, one-half its former price.