Co., 119 Cal. 443, [51 Pac. 688]; Birch v. Hale, 99 Cal. 299, [33 Pac. 1088]; Durkee v. Central Pacific R. Co., 69 Cal. 533, [58 Am. Rep. 562, 11 Pac. 130]; Boone v. Oakland Transit Co., 139 Cal. 490, [73 Pac. 243]; Luman v. Golden A. C. M. Co., 140 Cal. 700, [74 Pac. 307].) The facts above quoted, concerning the manner in which the pelts were stowed, were subsequently embraced in hypothetical questions put by plaintiff to expert witnesses, to which replies were made both by a witness for the plaintiff and for defendant to the effect that such a method of stowing salted pelts would cause them to heat, ferment, and rot. Subsequently evidence was given by witnesses for defendant differing materially from the statement in the letter as to how the pelts were stowed. It is thus clear that the error was prejudicial.

No other error was committed in the admission of evidence, and we think the evidence sustains all the findings attacked, in that the evidence is either conflicting, or of such a character that different conclusions as to the ultimate facts involved might be reasonably drawn therefrom. No good purpose would be subserved by a discussion of the evidence, and, as the judgment must be reversed for the error above pointed out, such discussion might prejudice the rights of the parties on a new trial.

The judgment is reversed.

Harrison, P. J., and Cooper, J., concurred.

[Civ. No. 82. Second Appellate District.-November 10, 1905.] MCCARTHY COMPANY, Respondent, v. C. B. BOOTHE et al., Appellants.

ATTACHMENT-ACTION UPON BOND-DEPRECIATION IN VALUE OF OIL STOCK ATTACHED-PURCHASE FOR RESALE-RECOVERY TO LIMIT OF BOND. In an action upon an attachment bond by a plaintiff who was engaged in the business of buying and selling oil stock for profit, and the wrongful attachment of whose shares resulted in a depreciation in value beyond the limit of the bond, which shares plaintiff could and would have sold at a profit if it had not been for the attachment, the plaintiff is entitled to recover the amount of the bond.

ID.-ATTACHMENT OF PERSONAL PROPERTY-MEASURE OF DAMAGES.-In general, the measure of damages in case of the wrongful attachment of personal property is the difference in value of the attached property when seized and when restored, with the loss of its use meanwhile.

ID. RULE APPLICABLE TO ATTACHMENT OF STOCK-There is more reason for applying such rule respecting the measure of damages in the case of an attachment of stock, whose principal value consists in its selling value, than in the case of personal property generally. Not only is the selling value destroyed by the attachment, but all of the profits and dividends to accrue from it are impounded equally with the stock itself.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. M. T. Allen, Judge.

The facts are stated in the opinion of the court.

M. L. Graff, and Lawler, Allen & Van Dyke, for Appellants.

Charles Silent, for Respondent.

SMITH, J.-Appeal from a judgment for the plaintiff, and from an order denying the defendants' motion for a new trial. The suit was brought upon an undertaking for attachment, in the statutory form, in the sum of $2,000, given by the defendants in the suit of one Humphris against the plaintiff herein. The facts shown by the findings are: The attachment was levied June 30, 1900, on five thousand four hundred shares of the Westlake Oil Company and seven thousand and sixty shares of the Wilson Oil Company, the property of the defendant in that case, now plaintiff. Judgment was rendered for the defendant in the attachment case October 7, 1901. It appears also that on March 19, 1901, another attachment was levied upon the same property in a second suit between the same plaintiff and defendant, which is still pending. At the date of the attachment, June 30, 1900, the stock of the Westlake Oil Company was of the market value of forty-eight cents per share and that of the Wilson Oil Company of the value of forty cents per share. But at the date of the second attachment the market value of the former shares had depreciated to twenty cents and that of the latter to thirty cents per share; and that the

market value of both at the date of the judgment, October 7, 1901, had fallen to five cents per share. The aggregate depreciation of the stock at the former date was $2,218 and at the latter $4,793, and it was found that the plaintiff was damaged in the latter amount. Judgment was given for the amount of the undertaking, $2,000. It is also found "that the plaintiff herein was during all of the said time engaged in the business of buying and selling shares of oil companies for profit; that it had bought said shares for resale and could have and would have sold the same, if it could have obtained possession and made delivery and transfer thereof." Some objection is made to this finding, but it seems to be fully supported by the evidence.

It is claimed by the respondent, and apparently admitted by the appellant, that in the case of attachment of personal property generally the measure of damages is the difference in value of the attached property when seized and when restored, with the loss of its use meanwhile. (Waples on Attachment, sec. 682; Wade on Attachment, sec. 302; Coulson v. Panhandle Nat. Bank, 54 Fed. 859, [4 C. C. A. 616]; Frankel v. Stern, 44 Cal. 173; Elder v. Kutner, 97 Cal. 494, 495, [32 Pac. 563]; Witherspoon v. Cross, 135 Cal. 96, [67 Pac. 18].) But it is claimed by the appellant that the rule is different in the case of an attachment of real property (Heath v. Lent, 1 Cal. 410; Elder v. Kutner, 97 Cal. 490, [32 Pac. 563]), and that the case of an attachment of stock comes under the reason of the latter rule. But, assuming the rules as to personal and as to real property generally to be as above stated, we do not think this contention can be sustained but rather, we think that there is more reason for the application of the former rule to the case of an attachment of stock than in the case of personal property generally. For stock generally, more than other species of personal property, is bought for sale, and its principal value in general consists in its selling value; and not only is this destroyed by the attachment, but all the profits and dividends to accrue from it are impounded equally with the stock itself. (Code Civ. Proc., sec. 698.)

But in this case there is another feature which we regard as material, which is that it is found that the stock in question was bought for resale, and that the plaintiff "could

have sold the same if it could have obtained possession and made delivery and transfer thereof." And the loss thus incurred, we think, comes clearly within the obligation of the defendants to pay "all damages which [plaintiff] may sustain by reason of the attachment," etc., and within the provisions of section 3300 of the Civil Code as to the measure of damages for breach of contract. We do not deem it necessary to discuss the cases cited by the appellant from other states, which do not seem to have involved this particular feature of the case before us. But our position seems to be supported by the decision in Girard v. Moore, 86 Tex. 675, [26 S. W. 945], cited by the appellant in support of his contention that the rules as to stock and as to real estate are the same. For it is there, in effect, held as to both species of property that the "loss resulting from [plaintiff's] being deprived of an opportunity to make an advantageous disposition of the estate," may be recovered as special damages, when pleaded as it is here.

Another point made by the appellant is, in effect, that the plaintiff might have avoided the damages by giving the statutory bond under the provisions of the Code of Civil Procedure. But we do not think this position requires discussion.

The judgment and order appealed from are affirmed. Gray, P. J., and Allen, J., concurred.

[Civ. No. 68. Third Appellate District.-November 11, 1905.] BROUNTON & ROBERTSON, Appellants, v. SOUTHERN PACIFIC COMPANY, Respondent.

CARRIERS-LIMITATION OF LIABILITY-LOSS NOT CAUSED BY NEGLIGENCE -UNEXECUTED AGREEMENT AS TO GROSS NEGLIGENCE.-A carrier may limit its liability for loss or damage to goods shipped except such as may be proximately caused by its negligence; but an agreement that the carrier is not to be liable for any loss or damage except such as may be caused by its gross negligence, which is unexecuted by the consignor, is of no binding effect.

ID. LOSS BY FIRE-ABSENCE OF NEGLIGENCE-UNDISPUTED FACTSQUESTION OF LAW-NONSUIT.-Where the goods shipped were lost

by fire at the depot, when ready to be unloaded, and all the facts relating to the loss, and the efforts of defendant's agents and employees to prevent the loss, were fully gone into upon the examination and cross-examination of the plaintiff's witnesses, and the undisputed facts thus elicited showed clearly that the defendant was not guilty of negligence or want of proper care, the question of negligence was one of law for the court, and it properly granted a nonsuit.

ID.-NOTICE TO CONSIGNEE RENDERED IMMATERIAL.-Where the undisputed evidence shows that the consignee left town on the morning of the day the goods were received, and did not return until the goods were burning or were consumed, and the consignee could not have been notified to take the goods away before their destruction by the fire, it becomes immaterial whether any notice was attempted to be given to the consignee. IL.-VARIANCE JUSTIFYING NONSUIT.-Where the complaint proceeds upon the theory of the common-law liability of the carrier, and the plaintiff's evidence showed a special contract limiting the carrier's liability for loss, not proximately caused by its negligence, the variance is a sufficient ground for a nonsuit.

APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge.

The facts are stated in the opinion of the court.

W. A. Gett, for Appellants.

Devlin & Devlin, for Respondent.

BUCKLES, J.-This is an appeal by the plaintiffs from a judgment dismissing their action upon motion of defendant for nonsuit and motion granted.

The complaint is for damages in the sum of $387.18 against the defendant for failure, as a common carrier, to carry from Sacramento and deliver at Wheatland to the consignee certain moldings and other building material, said defendant having undertaken and agreed to do so; alleging as follows: "That defendant did not safely carry and deliver the said goods pursuant to said agreement, but, on the contrary, defendant so negligently and carelessly carried and hauled the same in his calling as common carrier, that the said goods were wholly destroyed and lost to the plaintiffs."

Defendant's answer denies all the material allegations of the complaint, and alleges that the goods were received by