58 [9] Neither were the declarations admissible under the theory of agency, for the reason that the agency of Taylor, Jr., ended with the consummation of the purchase of the car, and these declarations were claimed to have IMPERIAL VALLEY LONG STAPLE COT- (District Court of Appeal, Second District, Di- been made some time thereafter. Declarations of an agent, with respect to a transaction, made after the completion of the trans-I. Factors 45-Entitled to reimbursement action, are not provable against the principal. Such statements are merely hearsay, and, like those of any other person, cannot affect the principal. 1 Rul. Case Law, p. 510. In this respect it is said: the case. [10] The final contention of appellant is that there is no legal evidence in the record upon which the award of damages may be based. We are unable to sustain this contention. The measure of plaintiff's damages was the reasonable rental value of the car for the period during which plaintiff was deprived of its use. Tucker v. Hagerty, 37 Cal. App. 789, 174 Pac. 908. The testimony of Taylor, Sr., shows that, owing to the fact that he was deprived of the use of his own automobile, he was required to hire another one for over three months, for which he was obliged to pay a rental of $60 per week. From the description given in the testimony of the car in question, the court may well have inferred that the rental value of such a car would not be less than the one rented. Therefore the amount of damages awarded plaintiff was well within the limit of the rule. True, plaintiff was allowed to testify over appellant's objection as to the amount of financial loss suffered by him in his business by reason of being deprived of said automobile; but there is not the slightest indication in the record that the court used the amount of such losses, or any part thereof, as the basis for fixing the award of damages. It follows that the admission of such evidence, if error, was harmless. We are of the opinion that no error has been shown, and therefore the judgment is affirmed. We concur: TYLER, P. J.; KERRIGAN, J. for necessary expenses and interest on advancements. A factor is entitled to reimbursement for necessary expenses in protecting or preserving the property, as for storage, handling, freight, and insurance, and for interest on advancements. 2, Factors 19-As against charge of conversion by pledging, must show it was not for more than owing by principal. Even if a factor has any authority, as between him and the principal, to pledge principal's property, which he did not have at common law, and which Civ. Code, § 2368, subd. 2, denies, he, having pledged it, must, to relieve himself of the charge of conversion, affirmatively show that it was not for more than the principal owed him. 3. Customs and usages 19(1)—Burden on factor to prove custom or usage, justifying confusion of principal's property with that of others. If a factor, mixing or confusing his principal's property with that of others, which as a general rule he has no authority to do, depends on custom or usage to justify it, as against charge of conversion, he must prove the custom or usage as any other fact. 4. Factors 38-Delegation of authority to independent broker conversion. Delegation by a factor of his authority to an independent broker, in contravention of Civ. Code, § 2368, subd. 3, unless authorized by the principal, constitutes a conversion. 5. Trover and conversion 32(4)—Allegation of conversion held sufficient. The affirmative allegation that plaintiff converted defendant's cotton sufficiently presents the issue of conversion, in the absence of spe cial demurrer. 6. Trial 396(3)—Pleading of conversion and substantial evidence require finding. The answer presenting the issue of conversion generally necessitates a finding on any facts concerning which substantial evidence was introduced, which, if believed, would support the allegation of conversion. 7. Factors 45-Entitled to reimbursement for money properly advanced or expended before conversion. Though a factor be guilty of conversion by pledging or confusion of principal's property, or by delegation of authority, he is entitled to reimbursement for money properly advanced or expended before the conversion. Appeal from Superior Court, Imperial County; Phil. D. Swing, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Cal.) IMPERIAL VALLEY LONG STAPLE C. GROWERS' ASS'N v. DAVIDSON (209 P.) Action by the Imperial Valley Long Staple Cotton Growers' Association against F. J. Davidson. Judgment for plaintiff, and defendant appeals. Reversed. James L. Allen, of Santa Ana, and Conkling & Brown, of El Centro, for appellant. J. S. Larew, of El Centro, and Dan V. Noland, of Los Angeles, for respondent. CRAIG, J. The defendant, Davidson, delivered to the plaintiff, as a factor, 145 bales of cotton. As a part of the transaction the plaintiff advanced the sum of $18,406 to defendant. The trial court found that, after receiving the cotton, "the plaintiff, Imperial Valley Long Staple Cotton Growers' Association, commingled and mixed the said 145 bales of cotton belonging to the defendant with other cotton, not being the property of the defendant, F. J. Davidson, but being the property of other persons," and that "prior to the shipment of said cotton by plaintiff, for and on behalf of the said defendant, the said plaintiff hypothecated, mortgaged, and pledged the same, to various and divers persons, for various and divers sums and amounts." Thereafter the plaintiff shipped the cotton, confused with that of other persons, to other independent factors in Galveston, Tex., and New Orleans, La., who sold it for a total sum of $18,634.31. It appears that the plaintiff also paid out for freight, storage, insurance, and handling the cotton an amount found by the court to have been $9,078.94, which finding was probably intended to be for $978.94. Interest on the advances accrued in the sum of $381.19. October 10, 1918, plaintiff demanded payment from Davidson of $1,654.82, which was refused. This action was then instituted. The complaint states a cause of action for money advanced by plaintiff as a factor. The court rendered judgment for the plaintiff for $1,654.82, together with interest at the rate of 6 per cent. per annum from October 10, 1918. [1, 2] A factor has authority to insure (subdivision 1, § 2368, Civ. Code), and he may collect for necessary expenses incurred in protecting or preserving the property as for storage, handling, freight, etc. (25 C. J. 382, 389), and for interest on advancements made over cash received (Heins v. Peine, 29 N. Y. Super. Ct. 420; Howard v. Behn and Foster, 27 Ga. 174). But the answer alleges that the plaintiff converted the merchandise consigned to it. The common-law rule was well settled that the factor has no authority to pledge his principal's goods (Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196; Wisp v. Hazard, 66 Cal. 459, 6 Pac. 91); and this was so, even though the factor has a lien for advances (25 C. J. 351; Benny v. Rhodes, 18 Mo. 147, 59 Am. Dec. 293). In Akron Cereal Co. v. First Nat. Bank, 3 Cal. App. 201, 84 Pac. 780, it is said: "A factor or a mere agent who is in possession of property with power to sell the same 59 has authority to transfer it by way of pledge. Civ. Code, § 2368 (2)." This language was used in discussing and construing section 2991 of the Civil Code. The case being considered was one in which the contest was between the pledgee and the factor's principal. Section 2368 of the Civil Code was not involved, except as its provisions might supply an element required in order that the defendant might take advantage of section 2991 of the Civil Code. The court held that, in order that the pledgee might claim the benefit of section 2991 of the Civil Code, among other things, it must be shown that the factor's principal had allowed another to assume the apparent ownership of the property in question for the purpose of making any tranfer of it, and that, under section 2368 of the Civil Code, the factor to whom the owner had consigned the goods received such power to sell or transfer them. As between the principal and the factor, the question whether the latter might pledge the goods received by him was not presented, nor was its determination necessary to a decision of the case. The language of section 2368, Civil Code, is not only unambiguous, but is clearly prohibitive against the factor pledging his principal's property. Subdivision 2 of the last-named section, which defines the authority of a factor, reads: for sale, except such things as it is contrary "To sell, on credit, anything intrusted to him to usage to sell on credit; but not to pledge, mortgage, or barter the same." Of course, section 2991 has no application in the instant case. It was designed to protect persons who deal with the factor concerning property in his possession. Wisp v. Hazard, supra. The opinion in Wright v. Solomon makes no reference to the authority of a factor to pledge goods of his principal because of having made advancements. In that case the factor, Darling, had pledged the property for his own debt and without having made any advancements. Darling was not a "technical factor," being engaged in other business as well as that of a factor. The court, after an extended consideration of the matter, overruled certain earlier cases, which limited the application of the rule, that a factor could not pledge, to technical factors, and held that the same principle applies to all factors. It further determined that the authority to pledge might be inferred from acts, and that under certain conditions it must be so inferred; but a careful examination of the case shows that it contains no language even remotely suggesting that a factor might pledge the goods of a principal under any circumstances. This case also holds that the pledge of property is a special transaction not in the usual course of business, and therefore outside of the protection extended to ordinary transactions of commerce. It is true that in some jurisdictions the factor is allowed this right to the extent of his. advancements, but, before exercising it, he must demand from his principal the amount of his charges. Merchants' Nat. Bank of Memphis v. Trenholm, 12 Heisk. (Tenn.) 20. Where, as in the instant case, the factor pledges the goods of his principal, in order to relieve himself from the charge of conversion, he certainly must show affirmatively that the pledge was not for more than the amount that the principal owes. Here there is no finding or proof as to the amount for which the cotton was pledged. [3] It appears, also, that plaintiff mixed or confused defendant's cotton with that of others and pledged it in a mass along with such other cotton. The general rule is that a factor has no right to do this. 25 C. J. 364. If custom and usage justify such a course, it would be necessary to introduce evidence to prove that fact as any other. This was not done in the instant case. version took place. The association would be entitled to be reimbursed for money properly advanced or expended prior to the conversion. Judgment reversed. We concur: FINLAYSON, P. J.; WORKS, J. WHITWORTH v. JONES. (Civ. 3790.) (District Court of Appeal, Second District, Division 1, California. July 10, 1922. Hearing Denied by Supreme Court Sept. 7, 1922.) 1. Appeal and error 1012(2)—No right in appellate court to resolve questions as to preponderance of evidence. ords 9/2, New, vol. 12A Key-No. Series -Party, in whose name automobile registered, not deprived of right to maintain action for injury, though purchased with funds of another. Notwithstanding Vehicle Act, § 8, as amended by St. 1917, p. 391, § 7, providing that, until the transferee of an automobile has received the certificate of registration and indorsed it with his name, delivery shall be deemed not to have been made and the intended transfer incomplete, where a son purchased an automobile with his mother's funds, but registered it in his name, and later it was agreed to be the son's property, the son was not deprived of a right of action for its injury because the technical procedure of the statute had not been complied with. Where, in an action for injury to an automobile at a crossing, there was some evidence of negligence of defendant under Vehicle Act, § 20, as amended by St. 1919, p. 215, § 12, providing that at street intersections an automobile approaching from the right should have the right of way, unless the vehicle approaching [4-6] Counsel for appellant contends that from the right is further from the point of inthe court erred in not finding that the plain- tersection than the other, any question as to tiff delegated its agency as a factor to oth-the weight of evidence will not be reviewed. er brokers. It is claimed that such was the 2. Municipal corporations 705 (10) - Recfact, and that such action constituted a conversion. Subdivision 3, § 2368, Civil Code, expressly prohibits the delegations of the factor's authority "to any person in an independent employment." This was the general rule at common law. 25 C. J. 348. However, plaintiff insists that the pleadings as they are framed do not present an issue on this point, and that therefore no finding concerning the delegation of authority was necessary. The answer alleges affirmatively that the plaintiff converted the cotton. Such an allegation sufficiently presents the issue in the absence of special demurrer. Lowe V. Ozmun, 137 Cal. 257, 70 Pac. 87. Hence a finding was necessitated upon any facts concerning which substantial evidence was introduced, and which, if believed by the trial court, would have supported the allegation of conversion. Evidence was presented that the plaintiff delegated its authority to independent brokers. If such evidence had been accepted as true by the trial court, this would have established a conversion. Subdivision 3, § 2368, Civ. Code; 25 C. J. 348. However, the plaintiff alleged in its complaint that the defendant authorized it to sell the cotton as it did. If true, this would relieve it of the charge of conversion; but the court made no finding upon this matter. [7] We conclude, therefore, that the plaintiff converted the property of the defendant. This being so, the defendant was within his right in setting up that fact as a defense which he did in his answer. The findings do not indicate just what part of the amount for which judgment was rendered was advanced before, and what part after, the con 3. Bailment 21-Bailee may sue for injuries to property by third persons. Bailees may sue for damages for injuries to property by third persons. Presumed that father 4. Evidence 83(1). indorsed son's application for automobile operator's license. Vehicle Act preserves as against a parent liability for negligence of a minor child while operating the parent's automobile, and section 24, as amended by St. 1917, p. 408, § 18, provides that an operator's license shall not be granted to a minor unless his parent shall join in signing the application, and the negligence of the minor shall then be imputed to the person so signing; and where, in an action for injury from an automobile driven by defendant's minor son, the evidence showed that defendant owned the automobile and his son lived with him, under Code Civ. Proc. § 1963, subds. 15, 33, declaring the presumption that official duty had been regularly performed, the trial judge was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (209 P.) warranted in assuming that defendant indorsed | mounted on columns along its sides, she did his son's application. Appeal from Superior Court, Los Angeles County; Paul J. McCormick, Judge. Action by John C. Whitworth against Mack B. Jones. From a judgment for plaintiff, defendant appeals. Affirmed. David R. Faries and J. R. Berryman, Jr., both of Los Angeles, for appellant. Frank C. Dunham, of Pasadena, for respondent. JAMES, J. The judgment in this case was for damages which the court found plaintiff had suffered by reason of a collision which occurred between an automobile driven by a son of the defendant and one belonging to the plaintiff. The defendant, on this appeal, urges several grounds for a reversal, of the judgment. There was a plea of contributory negligence in the answer, and a cross-complaint asserting an alleged cause of action for damages in favor of defendant, growing out of the same collision. [1] Considering first the claim that the evidence failed to establish any negligence on the part of the driver of defendant's machine. Los Robles avenue, in the city of Pasadena, extends in a northerly and southerly direction. Walnut street intersects it at right angles. Walnut street is 30 feet in width; Los Robles avenue is 50 feet wide. At about 7 o'clock in the evening, in November, 1919, She The a sister of the plaintiff was driving a large coupé westerly along Walnut street. was accompanied by three other ladies. three latter were witnesses at the trial; but, as none of them were paying heed to conditions upon the street at the time, their testimony furnishes little aid to a solution of the questions presented. For that reason no further reference will be made to their statements. Plaintiff's sister, who was driving the car, was an adult, and had operated automobiles for a number of years. She testified that, as she reached the intersection of Walnut and Los Robles streets, she looked up and down Los Robles, and saw at the north only a single light located at a point which was afterwards determined to be over 600 feet away; that, having slowed her machine down to a speed of between 10 and 12 miles per hour, she proceeded to cross Los Robles; and that, when beyond the center line of that street, her car was struck on the right-hand rear side by an automobile advancing from the north, which turned out to be one belonging to the defendant and then being driven by the 18 year old son of the latter. The witness further testified that it was nighttime, or "twilight," and an hour when it was necessary to have lighted the lamps on the car. She testified that, while Los Robles avenue was supplied with lights not notice whether those lights were burning at the time; that she did not observe defendant's automobile, or know of its presence there, until it collided with the machine she was driving. Chiefly involved in the decision of the trial judge is the question as to which machine had the right of way at the street intersection. Originally the Vehicle Act (St. 1915, p. 407) provided that at street intersections the automobile approaching from the right should have the right of way. In the Statutes of 1919 (page 215, § 12 [section 20, par. "f"]) the law was amended by adding the proviso: "Unless such vehicle approaching from the right is further from the point of the intersection of their paths than such first named vehicle." By the testimony of the defendant's son, it appears that he assumed that he had the right of way and would be permitted to cross Los Robles avenue in advance of plaintiff's machine. He testified that, as he came south on Los Robles avenue, he observed plaintiff's machine, even before it had reached the easterly curb of Los Robles; that, as the latter machine reached the latter point, he was about 50 feet north of the intersection of the two streets. His testimony at different points in the examination as to this fact varied, but the court was entitled to draw its own conclusions therefrom. Other evi dence showed that the right-hand wheels of defendant's car were about 4 feet away from the westerly curb line of Los Robles avenue. When it is remembered that the total width of Los Robles avenue from curb to curb was 50 feet, it appears that there was some evidence from which the trial court was justified in concluding that, as between the two machines, that of the plaintiff as it entered Los Robles was nearer the point where the paths of the two would intersect than was that of the defendant. Under the provisions of the Vehicle Act such a condition gave to the plaintiff's machine the right to pass first. There is enough, also, in the evidence to warrant the statement that there was a conflict as to whether the headlights on defendant's machine were burning at the time. It is true that defendant's son testified that they were so burning. Plaintiff's sister had testified that she looked to the north on Los Robles and saw only a single light 600 feet away. Necessarily, considering the fact that the collision followed within two or three seconds of time, defendant's machine was at that time much nearer to Walnut street than was the single light noted. Hence the admissible inference from Miss Whitworth's testimony that, had the headlights been burning on defendant's machine, she would have noticed them. The case presented a close question on the facts, but, as pointed out, there was some substantial evidence tending to establish negligence on the part of the driver of defendant's machine. Once that is determined, this court has not the right to resolve any question as to the preponderance of the evidence or weight of the proof. [2, 3] Another contention of appellant is that the evidence was insufficient to show that plaintiff owned the automobile which was being driven by his sister. Plaintiff testified that he purchased the automobile in 1919 for his mother, who was then absent, and with her funds; that he caused it to be registered in his own name, and that when his mother returned, a month later, in the course of adjustment of the business affairs of the family, it was agreed that he should have the machine as his own. There was no evidence tending to dispute this state of facts. The objection at this point as made by appellant refers to the automobile law in force at the time of the purchase, which required that, in the event of change of ownership, indorsements be made upon the old registration certificate by the transferor and transferee and a new license be issued. title, with no substantial or beneficial interest in the property. There is not concerned here any question as to the rights of creditors of the mother, and, as between the parties mother and son, the mother should be held to be estopped from asserting any right of action for damages as against the defendant. This reasoning applies, regardless of whether it be considered that the original transaction involving the purchase of the machine was properly carried out, so as to vest title in the mother, or that the mother failed to make effectual the transfer of her title in the machine to plaintiff. There is a second answer to the contention to which the foregoing discussion has been addressed, and that is this: Conceding that the plaintiff did not become the legal owner of the automobile, he did nevertheless, by reason of his having been given possession of the machine and having at all times exercised control over it, acquire the rights of a bailee. Among those rights is that to sue for damages for injuries caused to the property by third persons. "The bailee is entitled to the possession of the property, * therefore has a special This act (Stats. 1917, p. 391, § 7) provides right or property in the chattel to the extent further thatof his bailment contract, and can protect it against wrongdoers who occasion loss or injury. In such cases the damages are not confined to the mere interest of the bailee, but in case of injury or loss of the property he may recover its full value, together with any special damage to him, and for all beyond his own interest he would be a trustee for the bailor or owner." Van Zile on Bailments and Carriers (2d Ed.) par. 57. "Until such transferee has received such certificate of registration and has written his name upon the face thereof in the blank space provided for said purpose by the department, delivery of said motor vehicle shall be deemed not to have been made and title thereto shall be deemed not to have passed, and said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose. As plaintiff purchased this machine and caused it to be immediately registered in his own name, and as it was agreed by his mother (who owned the funds used in the purchase price), about one month after the purchase, that he should be considered the owner, he ought not be deprived of his right to maintain this action because only that the exact technical procedure prescribed in the automobile law had not been complied with. The original license had been issued in the name of plaintiff, who at once had and continued to have actual control of the vehicle. Defendant's only concern in this regard is to be assured that he may not be subjected to another action for damages. Assuming that, by reason of the restriction of the Vehicle Act, the legal title to the automobile rested in the mother of the plaintiff, plaintiff had acquired the right, by reason of the agreement that title should be transferred to him, to have the mother complete the transaction and make the indorsements of transfer as the law provided should be done. Assuming that the law prevents the passing of title in such circumstances, the mother remained only as the holder of the bare legal On the general subject, see, also, 3 R. C. L. pp. 138, 139; also Boles v. Stiles (Cal. Sup.) 204 Pac. 848. That this right of the bailee to sue for all damages caused by injury to the property in his possession may be restricted by the contract of bailment should be taken as a qualification of the general rule stated. From the facts here shown no such restriction would be implied. [4] It appeared in evidence that the son of defendant was 18 years of age and that he held a driver's license, authorizing him to operate an automobile on the public ways. It appeared at the time that his father was accustomed to allow the young man to use the automobile for his own purposes, and that, on the evening in question, the son was on his way to some place on a mission which had to do only with his own convenience or pleasure. Under this state of facts, appellant argues that there was no liability on the part of the father to respond in damages for the tort of the son. The case of Spence v. Fisher, 184 Cal. 209, 193 Pac. 255, 14 A. L. R. 1083, is cited in support of that argument. That was a case where an adult daughter, operating an automobile for her own con |