Opinion
Hearing Granted by Supreme Court Nov. 19, 1931.
Appeals from Superior Court, Los Angeles County; Leon R. Yankwich, Judge.
On petition for rehearing.
Petition denied.
For former opinion, see 3 P.2d 316.
COUNSEL
Samuel A. Miller and Paul J. Ziegler, both of Los Angeles, for appellants.
Euler & Subith, Louis J. Euler, and Fred E. Subith, all of Los Angeles, for respondent.
Roy Maggart and Walter J. Richards, both of Los Angeles, for intervener Keefe.
OPINION
BISHOP, Justice pro tem.
On this petition for a rehearing, reliance is again placed on two bits of evidence, as supporting defendant’s claim that he had been defrauded by a promise. Of course, if the evidence referred to supported the conclusion that such a promise had been made, the conclusion would be binding on us, even in the face of contrary evidence. But it does not support the conclusion. Proof, however complete, that the plaintiffs made a promise to some one other than defendant, is not proof, nor does it justify an inference, that such a promise was made to the defendant. Nor is it sufficient to show that, some time after the notes were signed, the defendant had a conversation with one of the plaintiffs in which statements were made which, if made before the notes had been given, might be construed as establishing such a promise. It is worthy of consideration, too, that the testimony relied on, giving the conversation had between defendant and Junod some time after the notes were executed, came out on cross-examination. The purpose in eliciting it, therefore, was not to prove a pre-execution promise. Nor was that its effect.
Proof that plaintiffs had sold defendant’s stock established no defense. That sale was expressly authorized by their contract of pledge. "Personal property may be pledged [etc.] upon such terms and conditions as the parties may agree upon, and courts of law will be governed by the language of the contract in each particular case." Hyatt v. Argenti (1853) 3 Cal. 151. The failure of the plaintiffs to return the stock when payment was tendered by the defendant did not result in changing the transaction from one of pledge, with right of sale and substitution, to one wherein the identical property pledged must be held. It gave rise, at most, to an action in conversion. Loughborough v. McNevin (1887) 74 Cal. 250, 14 P. 369, 15 P. 773, 5 Am. St. Rep. 435; Kullman v. Greenebaum (1891) 92 Cal. 403, 28 P. 674, 27 Am. St. Rep. 150; and see Hawley Bros. Hardware Co. v. Brownstone (1899) 123 Cal. 643, 56 P. 468; Bell v. Bank of California (1908) 153 Cal. 234, 94 P. 889; Hudgens v. Chamberlain (1911) 161 Cal. 710, 120 P. 422; Lem v. Wilson (1915) 27 Cal.App. 512, 150 P. 641. But no such defense as conversion and its damages was set up as an offset (see Gay v. Moss [1867] 34 Cal. 125; Vanderslice v. Matthews [ 1889] 79 Cal. 273, 21 P. 748), nor is there evidence from which a finding could be made by us. A general reversal is therefore our only course.
The petition for a rehearing is denied.
We concur: HOUSER, Acting P. J.; YORK, J.