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[9] Neither were the declarations admissible under the theory of agency, for the reason IMPERIAL VALLEY LONG STAPLE COT. that the agency of Taylor, Jr., ended with TON GROWERS' ASS'N V. DAVIDSON. the consummation of the purchase of the car,

(Civ. 3532.) and these declarations were claimed to have

(District Court of Appeal, Second District, Dibeen made some time thereafter. Declara

vision 2, California. July 18, 1922.) tions of an agent, with respect to a transaction, made after the completion of the trans- 1. Factors 45-Entitled to reimbursement action, are not provable against the princi for necessary expensės and interest on ad. pal. Such statements are merely hearsay, vancements. and, like those of any other person, cannot A factor is entitled to reimbursement for affect the principal. 1 Rul. Case Law, p. necessary expenses in protecting or preserv. 510. In this respect it is said:

ing the property, as for storage, handling,

freight, and insurance, and for interest on ad"A rule that would allow an agent, after a vancements. transaction is closed, to admit away the rights

2. Factors - 19-As against charge of conof his principal, would be too dangerous to be

version by pledging, must show it was not for tolerated."

more than owing by principal.

Even if a factor has any authority, as beIt cannot be successfully contended that tween him and the principal, to pledge princithe declarations were offered as contradictory pal's property, which he did not have at comstatements, or for the purpose of impeach- mon law, and which Civ. Code, $ 2368, subd. 2, ment, because the record plainly shows other-denies, be, having pledged it, must, to relieve

himself of the charge of conversion affirmative. wise. The declarations were offered as af

ly show that it was not for more than the firmative proof; the witness who testified to

| principal owed him. them being called out of order, prior to the time that Taylor, Jr., became a witness in 3. Customs and usages om 19(1)-Burden on the case.

factor to prove custom or usage, justifying

confusion of principal's property with that [10] The final contention of appellant is that|

of others. there is no legal evidence in the record upon

If a factor, mixing or confusing his prinwhich the award of damages may be based. cipal's property with that of others, which as We are unable to sustain this contention. a general rule he has no authority to do, deThe measure of plaintiff's damages was the pends on custom or usage to justify it, as reasonable rental value of the car for the pe against charge of conversion, he must prove the riod during which plaintiff was deprived of custom or usage as any other fact. its use. Tucker v. Hagerty, 37 Cal. App. 789, 4. Factors 38-Delegation of authority to 174 Pac. 908. The testimony of Taylor, Sr., independent broker conversion. shows that, owing to the fact that he was de Delegation by a factor of his authority to prived of the use of his own automobile, he an independent broker, in contravention of Civ. was required to hire another one for over

Code, $ 2368, subd. 3, unless authorized by three months, for which he was obliged to

icon to the principal, constitutes a conversion. pay a rental of $60 per week, From the de- 5. Trover and conversion 32(4)-Allegation scription given in the testimony of the car in of conversion held sufficient. question, the court may well have inferred The affirmative allegation that plaintiff conthat the rental value of such a car would not verted defendant's cotton sufficiently presents be less than the one rented. Therefore the

the issue of conversion, in the absence of spe

cial demurrer. amount of damages awarded plaintiff was well within the limit of the rule. True, plain- 6. Trial Gww396(3)-Pleading of conversion tiff was allowed to testify over . appellant's and substantial evidence require finding. objection as to the amount of financial loss The answer presenting the issue of conversuffered by him in his business by reason of

sion generally necessitates a finding on any

facts concerning which substantial evidence being deprived of said automobile; but there

was introduced, which, if believed, would supis not the slightest indication in the record

port the allegation of conversion. that the court used the amount of such losses, or any part thereof, as the basis for fixing 7. Factors 45-Entitled to reimbursement the award of damages. It follows that the

for money properly advanced or expended admission of such evidence, if error, was

before conversion.

Though a factor be guilty of conversion by harmless. We are of the opinion that no error has

pledging or confusion of principal's property,

or by delegation of authority, he is entitled to been shown, and therefore the judgment is

reimbursement for money properly advanced or affirmed.

expended before the conversion.

We concur: TYLER, P. J.; KERRI Appeal from Superior Court, Imperial GAN, J.

| County; Phil. D. Swing, Judge.
Om bor 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 59

(209 P.) Action by the Imperial Valley Long Staple, has authority to transfer it by way of pledge. Cotton Growers' Association against F. J. Civ. Code, 2368 (2).” Davidson. Judgment for plaintiff, and de

This language was used in discussing and fendant appeals. Reversed.

construing section 2991 of the Civil Code. James L. Allen, of Santa Ana, and Conk. The case being considered was one in which ling & Brown, of El Centro, for appellant.

the contest was between the pledgee and the J. S. Larew, of El Centro, and Dan V. No factor's principal. Section 2368 of the Civil land, of Los Angeles, for respondent.

Code was not involved, except as its provi.

sions might supply an element required in CRAIG, J. The defendant, Davidson, de order that the defendant might take advanlivered to the plaintiff, as a factor, 145 bales | tage of section 2991 of the Civil Code. The of cotton. As a part of the transaction the court held that, in order that the pledgee plaintiff advanced the sum of $18,406 to de- I might claim the benefit of section 2991 of the fendant. The trial court found that, after Civil Code, among other things, it must be receiving the cotton, “the plaintiff, Imperial shown that the factor's principal had alValley Long Staple Cotton Growers' Associa

lowed another to assume the apparent owntion, commingled and mixed the said 145

ership of the property in question for the bales of cotton belonging to the defendant purpose of making any tranfer of it, and with other cotton, not being the property of

that, under section 2368 of the Civil Code, the defendant, F. J. Davidson, but being the the factor to whom the owner had consigned property of other persons," and that "prior the goods received such power to sell or to the shipment of said cotton by plaintiff, for

transfer them. As between the principal and and on behalf of the said defendant, the

the factor, the question whether the latter said plaintiff hypothecated, mortgaged, and

might pledge the goods received by him was · pledged the same, to various and divers per

not presented, nor was its determination necsons, for various and divers sums and

essary to a decision of the case. The lanamounts.” Thereafter the plaintiff shipped

guage of section 2368, Civil Code, is not only the cotton, confused with that of other per

| unambiguous, but is clearly prohibitive sons, to other independent factors in Galves

| against the factor pledging his principal's ton, Tex., and New Orleans, La., who sold it property. Subdivision 2 of the last-named for a total sum of $18,634.31. It appears that

section, which defines the authority of a facthe plaintiff also paid out for freight, stor

tor, reads: age, insurance, and handling the cotton an amount found by the court to have been $9,

"To sell, on credit, anything intrusted to him

for sale, except such things as it is contrary 078.94, which finding was probably intended

to usage to sell on credit; but not to pledge, to be for $978.94. Interest on the advances

mortgage, or barter the same." accrued in the sum of $381.19. October 10, 1918, plaintiff demanded payment from Of course, section 2991 has no application Davidson of $1,654.82, which was refused. in the instant case. It was designed to proThis action was then instituted. The com- tect persons who deal with the factor conplaint states a cause of action for money ad- cerning property in his possession. Wisp v. Fanced by plaintiff as a factor. The court Hazard, supra. rendered judgment for the plaintiff for $1,- The opinion in Wright v. Solomon makes 654.82, together with interest at the rate of no reference to the authority of a factor to 6 per cent. per annum from October 10, 1918. |

pledge goods of his principal because of hav[1, 2] A factor has authority to insure ing made advancements. In that case the (subdivision 1, $ 2368, Civ. Code), and he may factor, Darling, had pledged the property collect for necessary expenses incurred in for his own debt and without having made protecting or preserving the property as for any advancements. Darling was not a "techstorage, handling, freight, etc. (25 C. J. 382, nical factor," being engaged in other busi389), and for interest on advancements made ness as well as that of a factor. The court over cash received (Heins v. Peine, 29 N. Y. after an extended consideration of the matSuper. Ct. 420; Howard v. Behn and Foster, ter, overruled certain earlier cases, which 27'Ga. 174). But the answer alleges that the limited the application of the rule, that a plaintiff converted the merchandise consign-factor could not pledge, to technical factors, ed to it. The common-law rule was well set- and held that the same principle applies to tled that the factor has no authority to pledge all factors. It further determined that the his principal's goods (Wright v. Solomon, 19 authority to pledge might be inferred from Cal. 64, 79 Am. Dec. 196; Wisp v. Hazard, 66 acts, and that under certain conditions it Cal. 459, 6 Pac. 91); and this was so, even must be so inferred; but a careful examithough the factor has a lien for advances | nation of the case shows that it contains no (25 0. J. 351; Benny v. Rhodes, 18 Mo. 147, language even remotely suggesting that a 59 Am. Dec. 293). In Akron Cereal Co. v. factor might pledge the goods of a principal First Nat. Bank, 3 Cal. App. 201, 84 Pac. under any circumstances. This case also 780, it is said:

holds that the pledge of property is a special "A factor or a mere agent who is in posses- transaction not in the usual course of busision of property with power to sell the same ness, and therefore outside of the protection

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extended to ordinary transactions of com- | version took place. The association would merce. It is true that in some jurisdictions be entitled to be reimbursed for money propthe factor is allowed this right to the extent erly advanced or expended prior to the conof his, advancements, but, before exercising / version. it, he must demand from his principal the Judgment reversed. amount of his charges. Merchants' Nat. Bank of Memphis V. Trenholm, 12 Heisk. We concur: FINLAYSON, P.J.; WORKS, J. (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 affirm

WHITWORTH V. JONES. (Civ. 3790.) atively that the pledge was not for more Disti

(District Court of Appeal, Second District, Dithe amount that the principal owes. vision 1, California. July 10, 1922. Hearing Here there is no finding or proof as to the Denied by Supreme Court Sept. 7, 1922.) amount for which the cotton was pledged.

[3] It appears, also, that plaintiff mixed or 1. Appeal and error Om 1012(2)-No right in confused defendant's cotton with that of oth- appellate court to resolve questions as to preers and pledged it in a mass along with such ! ponderance of evidence. other cotton. The general rule is that a fac

Where, in an action for injury to an autotor has no right to do this. 25 C. J. 364. If mo

T204 Telmobile at a crossing, there was some evidence custom and usage justify such a course, it

ii l of negligence of defendant under Vehicle Act, &

20, as amended by St. 1919, p. 215, $ 12, prowould be necessary to introduce evidence to

viding that at street intersections an automoprove that fact as any other. This was not bile approaching from the right should have the done in the instant case.

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 Om705(10) - Recfact, and that such action constituted a con-'ords 912, New, vol. 12A Key-No. Series version. Subdivision 3, § 2368, Civil Code, -Party, in whose name automobile register. .expressly prohibits the delegations of the ed, not deprived of right to maintain action factor's authority “to any person in an inde | for injury, though purchased with funds of pendent employment." This was the general another. rule at common law. 25 C. J. 348. However, Notwithstanding Vehicle Act, $ 8, as amendplaintiff insists that the pleadings as they

ed by St. 1917, p. 391, & 7, providing that, until are framed do not present an issue on this

the transferee of an automobile has received

the certificate of registration and indorsed it point, and that therefore no finding concern

with his name, delivery shall be deemed not to ing the delegation of authority was neces

have been made and the intended transfer insary. The answer alleges affirmatively that

complete, where a son purchased an automobile the plaintiff converted the cotton. Such an

with his mother's funds, but registered it in allegation sufficiently presents the issue in his name, and later it was agreed to be the the absence of special demurrer. Lowe v. son's property, the son was not deprived of a Ozmun, 137 Cal. 257, 70 Pac. 87. Hence a right of action for its injury because the techfinding was necessitated upon any facts con- nical procedure of the statute had not been comcerning which substantial evidence was in- | plied with. troduced, and which, if believed by the trial

3. Bailment am 121 -Bailee may sue for inju. court, would have supported the allegation ries to property by third persons. of conversion. Evidence was presented that Bailees may sue for damages for injuries to the plaintiff delegated its authority to inde | property by third persons. pendent brokers. If such evidence had been

4. Evidence 83(1) - Presumed that father accepted as true by the trial court, this

indorsed son's application for automobile opwould have established a conversion. Sub

erator's license. division 3, § 2368, Civ, Code; 25 C. J. 318.

Vehicle Act preserves as against a parent However, the plaintiff alleged in its com- / liability for negligence of a minor child while opplaint that the defendant authorized it to erating the parent's automobile, and section 24, sell the cotton as it did. If true, this would as amended by St. 1917, p. 408, § 18, provides relieve it of the charge of conversion; but that an operator's license shall not be granted the court made no finding upon this matter.

to a minor unless his parent shall join in sign[7] We conclude, therefore, that the plain

ing the application, and the negligence of the

minor shall then be imputed to the person so tiff converted the property of the defendant. This being so, the defendant was within his

signing; and where, in an action for injury

from an automobile driven by defendant's minor right in setting up that fact as a defense

son, the evidence showed that defendant owned which he did in his answer. The findings do the automobile and his son lived with him, unnot indicate just what part of the amount der Code Civ. Proc. $ 1963, subds. 15, 33, defor which judgment was rendered was ad-claring the presumption that official duty had vanced before, and what part after, the con- / been regularly performed, the trial judge was

Om 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.

not notice whether those lights were burn

ing at the time; that she did not observe Appeal from Superior Court, Los Angeles defendant's automobile, or know of its presCounty; Paul J. McCormick, Judge.

ence there, until it collided with the machine

she was driving. Action by John C. Whitworth against

! Chiefly involved in the decision of the trial Mack B. Jones. From a judgment for plain.

judge is the question as to which machine tiff, defendant appeals. Affirmed.

had the right of way at the street intersecDavid R. Faries and J. R. Berryman, Jr., tion. Originally the Vehicle Act (St. 1915, both of Los Angeles, for appellant.

p. 407) provided that at street intersections Frank C. Dunham, of Pasadena, for re the automobile approaching from the right spondent,

should have the right of way. In the Stat

utes of 1919 (page 215, $ 12 (section 20, par. JAMES, J. The judgment in this case was

“f”]) the law was amended by adding the for damages which the court found plaintiff

proviso: had suffered by reason of a collision which oc- "Unless such vehicle approaching from the curred between an automobile driven by a right is further from the point of the intersecson of the defendant and one belonging to tion of their paths than such first named vehithe plaintiff. The defendant, on this ap cle.' peal, urges several grounds for a reversal. of the judgment. There was a plea of con

By the testimony of the defendant's son, tributory negligence in the answer, and a

| it appears that he assumed that he had the cross-complaint asserting an alleged cause right of way and would be permitted to cross of action for damages in favor of defendant,

Los Robles avenue in advance of plaintiff's growing out of the same collision,

machine. He testified that, as he came south [1] Considering first the claim that the evi-on1sos Rob

he claim that the evil on Los Robles avenue, he observed plaindence failed to establish any negligence on

tiff's machine, even before it had reached the the part of the driver of defendant's machine.

easterly curb of Los Robles; that, as the Los Robles avenue, in the city of Pasadena,

latter machine reached the latter point, he extends in a northerly and southerly direc

was about 50 feet north of the intersection tion. Walnut street intersects it at right

of the two streets. His testimony at differangles. Walnut street is 30 feet in width;

ent points in the examination as to this fact Los Robles avenue is 50 feet wide. At about

| varied, but the court was entitled to draw 7 o'clock in the evening, in November, 1919,

its own conclusions therefrom. Other evia sister of the plaintiff was driving a large

dence showed that the right-hand wheels of coupé westerly along Walnut street. She

defendant's car were about 4 feet away from was accompanied by three other ladies. The

the westerly curb line of Los Robles avenue. three latter were witnesses at the trial: but. When it is remembered that the total width as none of them were paying heed to condi. of Los Robles avenue from curb to curb was tions upon the street at the time, their tes 50 feet, it appears that there was some evitimony furnishes little aid to a solution of dence from which the trial court was justithe questions presented. For that reason no 'fied in concluding that, as between the two further reference will be made to their state- machines, that of the plaintiff as it entered ments. Plaintiff's sister, who was driving Los Robles was nearer the point where the the car, was an adult, and had operated au- paths of the two would intersect than was tomobiles for a number of years. She testi. that of the defendant. Under the provisions fied that, as she reached the intersection of the Vehicle Act such a condition gave to of Walnut and Los Robles streets, she looked the plaintiff's machine the right to pass first. up and down Los Robles, and saw at the There is enough, also, in the evidence to warnorth only a single light located at a point rant the statement that there was a conflict which was afterwards determined to be over as to whether the headlights on defendant's 600 feet away; that, having slowed her ma- machine were burning at the time. It is true chine down to a speed of between 10 and 12 that defendant's son testified that they were miles per hour, she proceeded to cross Los so burning. Plaintiff's sister had testified Robles; and that, when beyond the center that she looked to the north on Los Robles line of that street, her car was struck on and saw only a single light 600 feet away. the right-hand rear side by an automobile ad. Necessarily, considering the fact that the vancing from the north, which turned out to collision followed within two or three secbe one belonging to the defendant and then onds of time, defendant's machine was at being driven by the 18 year old son of the lat that time much nearer to Walnut street than ter. The witness further testified that it was was the single light noted. Hence the adnighttime, or "twilight," and an hour when missible inference from Miss Whitworth's it was necessary to have lighted the lamps' testimony that, had the headlights been burnon the car. She testified that, while Los ing on defendant's machine, she would have Robles avenue was supplied with lights noticed them. The case presented a close question on the facts, but, as pointed out, , title, with no substantial or beneficial inthere was some substantial evidence tending terest in the property. There is not conto establish negligence on the part of the cerned here any question as to the rights of driver of defendant's machine. Once that creditors of the mother, and, as between the is determined, this court has not the right parties mother and son, the mother should to resolve any question as to the preponder- be held to be estopped from asserting any ance of the evidence or weight of the proof. right of action for damages as against the

[2, 3] Another contention of appellant is defendant. This reasoning applies, regardthat the evidence was insufficient to show less of whether it be considered that the that plaintiff owned the automobile which original transaction involving the purchase was being driven by his sister. Plaintiff tes- of the machine was properly carried out, so tified that he purchased the automobile in as to vest title in the mother, or that the 1919 for his mother, who was then absent, mother failed to make effectual the transfer and with her funds; that he caused it to of her title in the machine to plaintiff. be registered in his own name, and that when There is a second answer to the contention his mother returned, a month later, in the to which the foregoing discussion has been course of adjustment of the business affairs addressed, and that is this: Conceding that of the family, it was agreed that he should the plaintiff did not become the legal ownhave the machine as his own. There was no er of the automobile, he did nevertheless, evidence' tending to dispute this state of by reason of his having been given possesfacts. The objection at this point as made sion of the machine and having at all times by appellant refers to the automobile law 'exercised control over it, acquire the rights in force at the time of the purchase, which of a bailee. Among those rights is that to required that, in the event of change of sue for damages for injuries caused to the ownership, indorsements be made upon the property by third persons. old registration certificate by the transferor

"The bailee is entitled to the possession of and transferee and a new license be issued. This act (Stats. 1917, p. 391, $ 7) provides right or property in the chattel to the extent

the property, * . * therefore has a special further that

of his bailment contract, and can protect it "Until such transferee has received such cer

er against wrongdoers who occasion loss or intificate of registration and has written his name jury

jury. * * * In such cases the damages are upon the face thereof in the blank space pro

not confined to the mere interest of the bailee, vided for said purpose by the department, debut in case of injury or loss of the property he livery of said motor vehicle shall be deemed not

may recover its full value, together with any to have been made and title thereto shall be special damage to him, and for all beyond his deemed not to have passed, and said intended own interest he would be a trustee for the bail. transfer shall be deemed to be incomplete and / or or owner." Van Zile on Bailments and Carnot to be valid or effective for any purpose.

riers (22 Ed.) par. 57.

On the general subject, see, also, 3 R. O. As plaintiff purchased this machine and L. pp. 138, 139; also Boles v. Stiles (Cal. caused it to be immediately registered in his Sup.) 204 Pac. 848. own name, and as it was agreed by his moth- That this right of the bailee to sue for all er (who owned the funds used in the pur- damages caused by injury to the property chase price), about one month after the pur- | in his possession may be restricted by the chase, that he should be considered the own- contract of bailment should be taken as a er, he ought not be deprived of his right to qualification of the general rule stated. maintain this action because only that the From the facts here shown no such restricexact technical procedure prescribed in the tion would be implied. automobile law had not been complied with. [4] It appeared in evidence that the son The original licensé had been issued in the of defendant was 18 years of age and that name of plaintiff, who at once had and con- he held a driver's license, authorizing him tinued to have actual control of the vehicle, to operate an automobile on the public ways. Defendant's only concern in this regard is It appeared at the time that his father was to be assured that he may not be subjected accustomed to allow the young man to use to another action for damages. Assuming the automobile for his own purposes, and that, by reason of the restriction of the that, on the evening in question, the son was Vehicle Act, the legal title to the automobile on his way to some place on a mission which rested in the mother of the plaintiff, plaintiff had to do only with his own convenience or had acquired the right, by reason of the pleasure. Under this state of facts, appelagreement that title should be transferred lant argues that there was no liability on the to him, to have the mother complete the part of the father to respond in damages for transaction and make the indorsements of the tort of the son. The case of Spence v. transfer as the law provided should be done. Fisher, 184 Cal. 209, 193 Pac. 255, 14 A. L. R. Assuming that the law prevents the passing 1083, is cited in support of that argument. of title in such circumstances, the mother That was a case where an adult daughter, remained only as the holder of the bare legal operating an automobile for her own con

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