Kelly v. Murphy

Searls, C.

This is an action by the plaintiff, as executrix of the last will of William Wearman, to recover from the defendant damages for the conversion of certain personal property belonging to the estate of deceased.

Plaintiff had judgment for two thousand dollars and costs, from which judgment defendant appeals.

At the outset of the trial, defendant objected to the introduction of any evidence in support of the claim of plaintiff, upon the ground that he had served upon plaintiff’s attorney a notice calling for a bill of particulars, which had not been furnished as required by section 454 of the Code of Civil Procedure. The objection was overruled by the court, and an exception taken.

1. There is nothing in the bill of exceptions to show' that any demand for a bill of particulars was ever made.

If defendant desired to avail himself of the benefit of his exception, it was incumbent on him to so embody the facts upon which' the ruling was based in his bill of exceptions that this court could with all the facts before it pass upon the question.

The complaint was defective in that it did riot describe with sufficient particularity the goods alleged to have been converted by defendant, and in the face of a special demurrer for that cause, could have been held bad; but it stated a cause of action, and no objection having been made on the ground indicated, it was sufficient.

The notice of dissolution of the firm of Wearman & Serrett, and that Wearman would thereafter conduct the business, etc., was properly admitted in evidence. As published in the newspaper, this notice was such a public declaration as may reasonably be supposed to have come to defendant, and was a circumstance proper to be considered in determining who was conducting the saloon business, and in whose possession the disputed property remained after the dissolution.

Like considerations apply to the admission of the evidence of Marcuse and others, tending to show that they sold goods to Wearman in his own name, and to introduce their bills for such goods to show they were charged to said Wearman individually, and not to defendant.

As evidence that the business was conducted by Wear-man ostensibly for himself and in his name, and not for or in the name of defendant, the evidence was proper.

The evidence as to the ownership of the property was conflicting, and we are not warranted in disturbing the findings on the ground that they are not supported by evidence.

There was evidence tending to show that notwithstanding the sale of the property to the defendant, as claimed by her, such sale was not accompanied by an immediate delivery and followed by a continued change of possession of the things transferred; and as a consequence of these facts, if they existed, the sale was void, not only as against creditors, but also as against any person on whom the estate of Wearman, the vendor, devolved in trust for the benefit of others than himself. (Civ. Code, sec. 3440.)

Plaintiff, as the executrix of the last will of William Wearman, deceased, the vendor of defendant, is a trustee in whom the estate vests for the benefit of others within the meaning of the code.

There was not a delivery and continued change of possession of the property within the meaning of the rule enunciated in Stevens v. Irwin, 15 Cal. 503, S. C., 76 Am. Dec. 500, which has been steadily adhered to in this state as a correct exposition of the law in numerous cases. (Dean v. Walkenhorst, 64 Cal. 78; Watson v. Rodgers, 53 Cal. 401; Wiedeman v. Frank, 2 West Coast Rep. 376; Grum v. Barney, 55 Cal. 254.)

There was no error in excluding the evidence offered on behalf of the defendant to show that she and Wear-man lived together as husband and wife.

If she desired to show coverture, it was incumbent upon her to plead it.

In her answer she avers: 1. "That her true name is Margaret Murphy Wearman”; 2. That she owned and possessed the goods and chattels in her own separate right, "and controlled the same as her separate property, independent of her husband, the said William Wearman, now deceased.”

Beyond these expressions, there is nothing in the pleadings to show that the relation of husband and wife existed between defendant and plaintiff’s testator.

As allegations showing the relation of husband and wife, they are wholly insufficient.

Again, the offer to prove that defendant and plaintiff’s testator lived together as man and wife was not an offer to prove marriage. (Letters v. Cady, 10 Cal. 533.)

Marriage being properly averred, the evidence indicated would tend to prove the fact,—nothing more.

Taking the pleadings with the proffered testimony, and the only inference we can draw from them is, net that defendant desired to show that she had intermarried with the deceased, but that they had lived together as man and wife.

We are of opinion the judgment should be affirmed.

Belcher, C. C., and Foote, C. concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is affirmed.