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. had no interest in the stock in question, but nowhere in his answer undertook to aver that said McGilvray had in fact any interest therein, or had ever made any claim thereto. The defendant denied that the stock was of the value of $3,000, 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. McGilvray of all interest in said three-fifths of said stock. est in said stock. The complaint proceeded to | fifths of his interest in the stock in question. allege that the said Joseph F. Bumiller, not It also admitted the execution to the defendhaving complied with the said direction and ant by Joseph F. Bumiller of the promissory order in said interlocutory decree, proceed- note referred to in the complaint and the ings for contempt were instituted by said pledge to him by said Joseph F. Bumiller of plaintiff against him, in which proceedings the stock in question as security for said 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 The defendant denied that D. A. McGilvray 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 were 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 $3,000. 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 sum of $3,000, the value of said stock, and for such other and further relief as may be 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 The case proceeded to trial upon the issues thus framed, and the trial court made its findings of fact and conclusions 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 by 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 $1,800, being three-fifths of the value of said stock, in which event she should not be 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. Bumiller 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 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. [1, 2] 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. Bumiller 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 case that Josseph F. Bumiller 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. § 1963, subds. 11 and 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 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. [3] 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 case. As to the form of these several tenders, we find them to have been in conformity with chapter 2 of title 4 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, § 2904); and, having done this by the method provided by chapter 2 of title 4 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, § 2903). The undisputed evidence shows that the plaintiff ten dered 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. [4] 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, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep. 435. 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 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 $1,800 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 $3,000, she offered no evidence to sustain such allegation. In this we think the appellant is correct; but in his answer the defendant, while denying that the stock was of the value of $3,000, expressly admitted that its value was the sum of $1,875, and he now contends that the trial court, acting upon such admission, could only have given its alternative judgment for three-fifths of said sum or the sum of $1,125. We think this contention must be sustained. It does not follow, however, that the judgment should be reversed on account of this error. The court having found the plaintiff to be entitled to an alternative judgment against the defendant for a sum equal to three-fifths of the value of the stock, in the event of the failure of the defendant to deliver the same to her, and the value of the stock as an admitted fact in the case being the sum of $1,875, the judgment may be modified, so as to require the defendant to pay to the plaintiff a sum equal to three-fifths of said last named value, or the sum of $1,125, in the event of his failure to deliver the stock to her as directed in the earlier part of the judgment. The trial court is directed to make such modification of the judgment in accordance with the views above expressed. In all other respects the judgment is affirmed. We concur: SHAW, J.; SLOSS, J. On Rehearing. PER CURIAM. [5] We are of the opinion that the concluding portion of the department decision, reading as follows, namely: "In this we think the appellant is correct; but in his answer the defendant, while denying that the stock was of the value of $3,000, expressly admitted that its value was the sum of $1,875, and he now contends that the trial court, acting upon such admission, could only have given its alternative judgment for three-fifths of said sum or the sum of $1,125. We think this contention must be sustained. It does not follow, however, that the judgment should be reversed on account of this error. The court having found the plaintiff to be entitled to an alternative judgment against the defendant for a sum equal to three-fifths of the value of the stock, in the event of the failure of the defendant to deliver the same to her, and the value of the stock as an admitted fact in the case being the sum of $1,875, the judgment may be modified, so as to require the defendant to pay to the plaintiff a sum equal to three-fifths of said last-named value, or the sum of $1,125, in the event of his failure to deliver the stock to her as directed in the earlier part of the judgment. "The trial court is directed to make such modi- | fication of the judgment in accordance with the views above expressed. In all other respects the judgment is affirmed" -should be modified, so as to read as fol lows: (38 Cal. App. 231) COULTER DRY GOODS CO. v. MUN- (District Court of Appeal, Second District, Cal- 1. HUSBAND AND WIFE ~19(7) — NECESSARIES-HUSBAND'S LIABILITY. One who has sold clothing and other dry goods to a wife and charged to her account cannot collect therefor from the husband without proving that the husband had neglected to make adequate provision for the support of the wife, in view of Civ. Code, § 174. 2. EVIDENCE 271(13)-CONVERSATIONS BETWEEN PLAINTIFF'S AGENTS. In an action against husband and wife for goods furnished the wife, testimony relating to conversations between plaintiff's general manager and its creditman about the affairs and financial responsibility of defendants, not made in the presence of either defendant or with their knowledge, to prove the account was charged to both, was properly excluded. Appeal from Superior Court, Los Angeles County; John W. Shenk, Judge. Action by the Coulter Dry Goods Company against E. S. Munford and wife. Judgment in favor of E. S. Munford and against wife. From the judgment for named defendant, plaintiff appeals. Affirmed. Ward Chapman and L. M. Chapman, both of Los Angeles, for appellant. George Beebe and J. M. Wright, both of Los Angeles, for respondents. CONREY, P. J. This action was brought against the defendant E. S. Munford and his wife, Mrs. E. S. Munford, upon an account for goods alleged to have been sold to the defendants at their special instance and request. Judgment was entered in favor of E. S. Munford and against the other defendant. Plaintiff appeals from the judgment in favor of E. S. Munford. "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 [1] The items of account consisted of clothequal to three-fifths of the value of the 25 ing and other dry goods furnished to Mrs. shares of stock in the event of the failure or refusal of the defendant to deliver the whole Munford while she was residing at Los Anof the said stock to her in conformity with the geles. The husband at that time resided terms of the judgment in her favor for the pos- elsewhere, but their separation was temposession thereof; but we think that the appel-rary and the case does not involve any delant 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." fense on the ground that the defendants were living separate and apart from each other. Mr. Munford testified that he did not know anything of the account until after the articles were furnished and that his wife never informed him of the fact that she had opened the account. He was receiving a salary of $416 per month and was sending to his wife for the support of herself and children the sum of $300 per month. She also had some separate income. Mr. Frank Coulter appears to have been an officer and one of the managers of the plaintiff. Mrs. Munford testified that for some time after she began trading with the plaintiff she paid cash for the articles purchased by her, until after she was urged by Mr. Coulter and by Mr. Baker, the general manager, to open a credit account. tiff. This was done by Mr. Baker, and the account | testimony presented on behalf of the plainwas made in the name of Mrs. Munford. She testified that Mr. Frank Coulter knew that her husband was providing her with $300 a month, and that that sum was sufficient for the support of herself and family. There is no evidence tending to show that the defendant E. S. Munford neglected to make adequate provision for the support of his wife or family. * * "If the husband neglect to make adequate provision for the support of his wife, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband." Civ. Code, § 174. It will be seen that the Civil Code limits the conditions of liability of a husband for merchandise sold to his wife. In Hoey v. Hechtman, 2 Cal. App. 120, 83 Pac. 85, the complaint alleged that the defendant A. J. Hechtman was indebted to plaintiff's assignor in certain sums for goods, wares, and merchandise sold to Carrie C. Hechtman, wife of the defendant, "and that said goods, wares, The court further said: "In the complaint before us it is alleged that the goods were necessary for the support of the wife, but it is not alleged that the husband had neglected to make adequate provision for her support. Both are essential. The allegation that the goods were necessary for her support refers to the character of the goods as being suitable to her circumstances and condition in life, and such allegation does not import that the husband had neglected to make adequate provision for her support. Under the statute the articles must be necessary for her support and the husband must have neglected to make adequate provision for her support." Counsel for appellant say in their brief that it is an uncontradicted fact that, when this account was first brought to the attention of Mr. Munford by means of a letter from the plaintiff, he wrote to Mr. Coulter a letter which contained an admission of his liability and a promise to pay the indebtedness when he got in better circumstances. That letter was lost, but one of the plaintiff's witnesses testified concerning its contents. But counsel are wrong in stating that the fact thus shown is uncontradicted, for their brief coatains a quotation from the testimony of Mr. Munford in which he directly denies that in any such letter he said that he owed the account or that he would pay it. [2] Appellant claims that the court erred in excluding testimony offered by the plaintiff for the purpose of proving that the ac count was opened on the credit of the hus- (38 Cal. App. 222) SANDER v. LOS ANGELES RY. CORPORATION. (Civ. 2570.) (District Court of Appeal, Second District, California. Sept. 19, 1918. Rehearing Denied by Supreme Court Nov. 18, 1918.) 1. CARRIERS 316(7) — NEGLIGENCE - PRESUMPTION FROM INJURY. Where plaintiff showed that she was injured when alighting from defendant's street car through the catching of her skirt upon a knob, an appliance which served as a bumper to intercept sliding iron gate of car, she was entitled under the doctrine of res ipsa loquitur to presumption of negligence until defendant had excused itself. 2. TRIAL 419 MOTION FOR NONSUIT WAIVER OF ERROR. tiff's evidence is waived by defendant suppleError in denying nonsuit at close of plainmenting plaintiff's proof by showing more fully the attendant conditions. REVIEW 3. APPEAL AND ERROR 991 In St. Vincent's Institution, etc., v. Davis, 129 Cal. 17, 61 Pac. 476, the Supreme Court referred to section 174 of the Civil Code and stated that under the provisions of that section whoever supplies necessaries for the support of a wife must, in order to recover therefor against the husband, show that the husband had failed to make adequate provision for the support of his wife. There being no such proof, it was held that the plaintiff was not entitled to recover. The same rule is applicable to the case at bar, for we must presume that the court believed the tes-whose skirt, when she was alighting from deIn action for injuries sustained by plaintiff, timony of the defendants, notwithstanding fendant's street car, caught upon a knob which that it was inconsistent with some of the served as a bumper to intercept street car gate, 4. CARRIERS 318(3)-INJURY TO PASSENGER -NEGLIGENCE-EVIDENCE. evidence held to support trial court's finding of | which closed the exit of the car. There were negligence. 5. CARRIERS -DEFENSE. 292(2)—INJURY TO PASSENGER That defendant street railway company's claim agent had received no report of prior accident due to skirt of passenger catching on knob which served as a bumper to intercept street car gate would not be a complete defense to charge of negligence. 6. APPEAL AND ERROR TION BASED ON FACTS. 996 - DETERMINA That different judges sitting at the trial might draw different conclusions upon the facts, as might also different juries, does not authorize interference by appellate court. Appeal from Superior Court, Los Angeles County; Charles Wellborn, Judge. Action by Elizabeth Sander against the Los Angeles Railway Corporation. From a judgment for plaintiff, and from an order denying motion for new trial, defendant appeals. Affirmed. Gibson, Dunn & Crutcher and Norman S. Sterry, all of Los Angeles, for appellant. Park & Park and Wheaton A. Gray, all of Los Angeles, for respondent. JAMES, J. Defendant appeals from a judgment entered in favor of plaintiff and from an order denying its motion for a new trial. two of these bumpers the one about which complaint is made being located four inches from the floor of the car, and the other near the top of the door, about six feet from the floor. There being no dispute in the evidence as to the location of the bumper or the manner of construction of the car at the place of exit, we may use for purposes of illustration two drawings attached to appellant's orief which it is agreed are correct: Handle Bag Door Post Bumper Door Post BUMPER. No. 1. No. 2. TEP STEP EXIT The action was to recover damages alleged to have been suffered by the plaintiff through the negligence of the defendant. Defendant was a common carrier of passengers, and plaintiff was a passenger on one of its electric cars in the city of Los Angeles when she suffered her alleged injuries. The car upon which plaintiff was riding was at a standstill, having stopped to permit the discharge of passengers. Plaintiff was preceded from the car by her husband. As she reached the exit space opposite the steps (there being two of the latter), she had a package in her right hand and took hold of the handguard with her left. As she stepped downward upon the steps, her skirt was caught on a protruding knob affixed near the floor at the left hand of the exit, and she was thrown to the street, where she struck upon her back. In her complaint the negligence charged against the defendant was that the knob was negligently placed in its position by the defendant and so placed as to constitute a dangerous contrivance. The case was tried before the court sitting without a jury, and by the deci- Drawing No. 1 is a view from the intesion of the trial judge the sum of $2,500 rior of the front platform showing the exit was awarded to the plaintiff. On this appeal door open; also the bumper near the floor, the defendant makes no contention against attached to the doorpost. No. 2 gives a view the amount of damages awarded or the ex- of the steps of the car looking downward imtent of plaintiff's injuries. The sole con- mediately over the same. A duplicate of tention is that no negligence whatsoever was the contrivance, which is termed a "bumper," shown by reason of which the defendant was was submitted under stipulation in this chargeable for any amount of damages. court by the parties, and we have it before The knob upon which plaintiff's skirt caught us for examination. This bumper consists was a small contrivance which served as a of an iron plate about 24 inches long by bumper to intercept the sliding iron gate 11⁄2 inches wide, with an ell piece which is FLOOR PLAN |