Bumiller v. Bumiller

RICHARDS, J., pro tem. This is an action in which the plaintiff seeks to recover from the defendant the possession of 25 shares of stock of the Western Union Oil Company or its value, with damages for its detention. The plaintiff alleges in her amended complaint that being the wife of one Joseph F. Bumiller she commenced on March 14, 1914, an action against him in the county of Los Angeles for divorce and for a division of certain community property, of which the stock in question was alleged to be a portion; that in said action an interlocutory, decree was duly entered on June 18, 1914, wherein it was adjudged and decreed that said stock, which was then standing on the books of the corporation in the name of one D. A. MeGilvray, was the community property of the parties to that action; that the said stock had been pledged by said Joseph F. Bumiller to Arthur W. Bumiller, the defendant in this ease, as security for the payment to him of the sum of one thousand dollars, evidenced by a promissory note for that amount executed by Joseph F. Bumiller to said Arthur W. Bumiller; that a three-fifths interest in said 25 shares of stock was thereby awarded and set apart'to said plaintiff as her separate property and estate, and that the said Joseph F. Bumiller be and he was thereby ordered and directed to transfer or cause to be transferred to said plain *121 tiff said three-fifths interest in said stock. The complaint proceeded to allege that the said Joseph F. Bumiller, not having complied with the said direction and order in said interlocutory decree, proceedings for contempt were instituted by said plaintiff against him, in which proceedings the court again ordered said defendant Joseph F. Bumiller to transfer her three-fifths interest in said stock to plaintiff, subject to the pledge of the whole thereof to said Arthur W. Bumiller as security for the said note which the defendant Joseph F. Bumiller was directed to pay; that upon being served with a copy of this latter order said Joseph F. Bumiller made, executed, and delivered to plaintiff an assignment of an undivided three-fifths of said stock; that thereupon and on December 21, 1914, the plaintiff herein made a written tender to said Arthur W. Bumiller of the amount of the principal and interest of the said promissory note as the security for the payment of which the whole of said stock was pledged; that said Arthur W. Bumiller, without objecting to the form or amount of said tender, refused to accept the same, whereupon the plaintiff deposited the amount thereof in the Citizens’ National Bank of Los Angeles to the credit of the said defendant herein, Arthur W. Bumiller, and notified him of the fact of said deposit; that thereafter, and at various times prior to the institution of this action, the plaintiff made other and similar written tenders of payment in full of said note to the defendant herein, copies of all of which tenders were attached to and made parts of the complaint; that the only objections which said defendant made to any of such tenders was the objection that such tenders did not provide for the protection of the defendant, Arthur W. Bumiller, against any claims which D. A. McGilvray may have to said stock arising out of the fact that it stood in his name upon the books of the corporation, and the further objection that Joseph F. Bumiller had instructed said Arthur W. Bumiller to turn over no property of his to said plaintiff without a written order from him. The plaintiff further avers that the said defendant still holds said stock in his possession and refuses to deliver any portion thereof to the plaintiff, and that the value of the stock is the sum of three thousand dollars. Wherefore, the plaintiff prays judgment that she is entitled to the possession of said note and of said stock, and that said defendant be required to deliver the same to her or pay the *122 sum of three thousand dollars, the value of said stock, and for such other and further relief as may he meet in the premises. The answer of the defendant admitted the existence of the divorce action and the making and entry of the interlocutory judgment therein, as averred in the plaintiff’s complaint, and admitted the execution of the assignment by Joseph F. Bumiller of three-fifths of his interest in the stock in question. It also admitted the execution to the defendant hy Joseph F. Bumiller of the promissory note referred to in the_ complaint and the pledge to him by said Joseph F. Bumiller of the stock in question as security for said note. The defendant also substantially admitted that the several tenders alleged to have been made by the plaintiff were in fact made, but denied that the plaintiff had stated in her complaint all of the defendant’s objections thereto, and in that regard he appended to his answer several other specified objections to the sufficiency of such tenders. The defendant denied that D. A. MeGilvray had no interest in the stock in question, but nowhere in his answer undertook to aver that said MeGilvray had in fact any interest therein, or had ever made any claim thereto. The defendant denied that the stock was of the value of three thousand dollars, or of any greater value than $1,875. Finally the defendant averred that he was willing to turn over to the plaintiff three-fifths of said stock upon the payment by her to him of three-fifths of the amount due upon said promissory note, and upon the further production by plaintiff of a release from D. A. MeGilvray of all interest in said three-fifths of said stock. The case proceeded to trial upon the issues thus framed, and the trial court made its findings of fact and cohelusions of law in plaintiff’s favor, and by its judgment decreed that the plaintiff was entitled to recover from the defendant the possession of the promissory note of Joseph F. Bumiller and the 25 shares of stock held hy the defendant as the security thereof upon payment by the plaintiff to said defendant of the sum of $1,060.53, the principal and interest due on said note, and that the plaintiff be thereupon subrogated to the rights of the defendant in and to said note and said stock, and that in the event that said defendant failed to deliver the same to said plaintiff as in said judgment directed, the said plaintiff have judgment against him for the sum of one thousand eight hundred dollars, being three-fifths of the value of said stock, *123 in which event she should not he required to pay to the defendant the amount of said note. It is from this judgment « that the defendant prosecutes the present appeal. The defendant’s first contention is that there was no evidence to sustain the finding of the trial court that the stock in question was the community property of the plaintiff and J. F. Sumiller prior to the making of said interlocutory decree, his point in support of said objection being that the only evidence of such community ownership of said stock was the interlocutory decree in an action to which this appellant was not a party, and by which, therefore, he was not bound. But this point, even if it had any value, cannot avail the appellant, since the plaintiff did not rest her right to said stock upon the terms of said decree alone, but also upon an assignment of her husband’s interest in said stock to her to the extent of an undivided three-fifths thereof, which assignment the defendant expressly admitted in his answer to have been made. The next point urged by the appellant is that there was no evidence other than that contained in the said interlocutory decree that the certificates of stock were indorsed in blank by D. A. McGilvray, in whose name the stock" stood upon the books of the corporation. The point has no merit. The defendant in his answer and throughout the entire case repeatedly asserted that he received and held the stock in-question as a pledge from Joseph F. Sumiller to secure the promissory note made by the latter to him. As such pledgee of this stock he cannot be heard to assert ownership thereof in any other person than his pledgor, in the absence of any claim of ownership by such third person or of a demand on the part of the latter, for the delivery of the pledged property to him. (Palmtag v. Doutrick, 59 Cal. 154, [43 Am. Rep. 245]; Wetherly v. Straus, 93 Cal. 283, [28 Pac. 1045].) The record in this case shows not only that D. A. McGilvray never claimed or asserted any ownership or interest in the stock in question, but further shows as an undisputed fact in the ease that Joseph F. Sumiller was, prior to and at the time of making said pledge, in the possession of the whole of said stock and was exercising acts of ownership over it. The presumption thus arises that he was the owner of the stock. (Code Civ. Proc., sec. 1963, subds. 11, 12.) This being so, it is quite immaterial whether or not the name of D. A. McGilvray was indorsed in blank on said stock as found by the court, the *124 important finding being that-Joseph F. Bumiller was at the time of its pledge? to the defendant, and of his assignment of an undivided three-fifths thereof to the plaintiff, the owner of the stock. The defendant made several objections to the tenders proffered by the plaintiff as a predicate to this action at the time of such' proffer and at the trial of the' ease. As to the form of these several tenders we find them to have been in conformity with chapter 2 of title IV of division 3 of the Civil Code, relating to the offer of performance of obligations. The plaintiff, having acquired an interest in the shares of stock which were subject to the defendant’s lien as the pledgor thereof, was entitled to redeem it from such lien under section 2903 of the Civil Code, and was entitled to do so by an offer of performance of the obligation of which the stock was the security (Civ. Code, sec. 2904); and having done this by the method provided by chapter 2 of title IV of division 3 of the Civil Code, was entitled to be subrogated to all of the benefits of .the lien as against all owners of other interests in the property (Civ. Code, sec. 2903). The undisputed evidence shows that the plaintiff tendered to, the defendant at the place where he was found, or to his duly authorized agent, the full amount due upon the promissory note for which the stock in question was pledged, and that she made such tender good by a deposit of such amount with a proper depository, giving the defendant due notice, thereof. The record also shows that when the parties were in court at the trial of the cause the plaintiff renewed these offers to pay said obligation in full. These repeated tenders and offers of payment of the promissory note of Joseph F. Bumiller were sufficient to have entitled the plaintiff to a delivery of said note with its security to her, and the defendant’s refusal to deliver the same upon demand amounted to a conversion of the property which entitled the plaintiff to bring and maintain this form of action. (Loughborough v. McNevin, 74 Cal. 250, [5 Am. St. Rep. 435, 14 Pac. 369, 15 Pac. 773].) The plaintiff being thus entitled to an undivided three-fifths interest in said stock, and having thus offered to pay 'the entire obligation evidenced by said note, the defendant’s offer in his pleadings and at the trial to turn over to her a portion of said stock upon payment of a part of the note did not measure up to her rights in the premises *125 as defined by the foregoing sections of the Civil Code and was therefore properly refused by her, and was also properly rejected by the trial court in its findings and judgment. The appellant finally urges that the trial court was in error in that portion of its alternative judgment to the effect that in the event of the defendant’s failure or refusal to deliver the note and stock as directed, the plaintiff should be entitled to recover judgment in the sum of one thousand eight hundred dollars for the conversion of the stock, being three-fifths of the value thereof. The appellant insists that though the plaintiff alleged the stock to be of the value of three thousand dollars, she offered no evidence to sustain such allegation. We think that the trial court was not in error in its conclusion that the plaintiff was entitled in the alternative portion of her judgment to a recovery of an amount of damages equal to three-fifths of the value of the 25 shares of stock in the event of the failure or refusal of the defendant to deliver the whole of the said stock to her in conformity with the terms of the judgment in her favor for the possession thereof; but we think that the appellant is correct in his contention that there was no evidence to support the finding of the trial court upon the issue as to the value of said stock, upon which the amount of its alternative judgment was predicated. It follows that the cause should be remanded for retrial upon this single issue, and it will be so ordered. Judgment reversed, and cause remanded for retrial upon the single issue as to the value of the 25 shares of stock in question; and upon a determination of this issue the trial court is hereby directed to make its finding thereon, and to thereupon enter judgment in plaintiff’s favor for the possession of the whole of said stock; or, in the event of the defendant’s failure or refusal to deliver the same, an alternative judgment in damages against the defendant for a sum equal to three-fifths of the entire value of said stock, as found by the court upon the retrial of said issue. Shaw, J., and Sloss, J., concurred.