expense in his trusteeship. Of course, the in favor of the regularity and propriety of orresponsibility of holding and safeguarding der appointing guardian. Department 2. Appeal from Superior Court, Monterey County; J. A. Bardin. Judge. a trust fund is an element to be regarded in fixing compensation. But we may fairly assume that the court felt that this feature might more properly be left for considera- In the matter of the estate and guardian. tion upon the final winding up of the trust, ship of Salvador Espinosa, an incompetent or at least at some later stage of its admin- person. From an order and decree adjudgistration. Viewing the record as a whole, | ing him incompetent, Espinosa appeals. Afwe do not feel warranted in saying that the action of the trial court in fixing the amount to be retained by the trustee manifests an abuse of discretion. The portion of the decree appealed from is affirmed. We concur: ANGELLOTTI, C. J.; RICHARDS, Judge pro tem. (179 Cal. 189) In re ESPINOSA'S ESTATE AND GUARD- (Supreme Court of California. Oct. 31, 1918.) [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Not Less Than.] 3. APPEAL AND ERROR 909(1) — PRESUMPTIONS-RECITALS IN ORDER. Where order appointing guardian of incompetent person recites that matter came on regularly to be heard, the court on appeal is bound, in the absence of a contrary showing, to hold that sufficient notice of hearing was given and that court acquired jurisdiction for all purposes. 4. INSANE PERSONS 33(1)-GUARDIANSHIP PROCEEDING STATUTES APPLICABLE. In proceeding for appointment of guardian of an incompetent person, Code Civ. Proc. 1763 et seq. governs, and jurisdiction of court does not depend upon compliance with section 1747, relating to guardians of minors. 5. INSANE PERSONS 22- FINDINGS-SUF firmed. J. W. Hocker and Z. B. Stuart, both of Los Angeles, for appellant. R. C. McComish, of San Jose, and C. F. Lacey, of Salinas, for respondent. MELVIN, J. Upon petition of his brother Salvador Espinosa was adjudged incompetent, and George S. Gould, Jr., was appoint. ed guardian of his person and estate. From the order and decree adjudging him incompetent, Espinosa appeals. There is neither a reporter's transcript nor a bill of exceptions on file, the record consist ing of the clerk's transcript alone. In appellant's brief appears a purported "Statement of the Case," which we must ignore except where it finds support in the clerk's transcript. Appellant makes three contentions in his brief. These are as follows: (1) The court failed to acquire jurisdiction of the matter. (2) There was no formal adjudication of incompetency. (3) The court abused its discretion in appointing Mr. Gould. [1] Under the first head, appellant contends that service of the citation on February 23, 1918, did not give the court the right to hear the matter on the 28th of the same month. Section 1763 of the Code of Civil Procedure provides that the alleged incompetent person must be given notice of the time and place of the hearing "not less than five days before" the appointed time. Appellant's counsel assert the rule to be that. where a statute requires an act to be done a given number of days before an event, the time must be reckoned by excluding the day of the act and the day of the event. Whatever may be the law in other jurisdictions, it is settled in California adversely to appellant's contention. Cosgriff v. Board of Election Commissioners, 151 Cal. 407, 91 Pac. 98. diction because of the alleged insufficiency of [2] Appellant also denies the court's juristhe citation to inform him of the contents of the petition. The citation designated a time and place for appellant to appear before the court "then and there to show cause" why Manuel Espinosa or some other fit and proper person should not be appointed guardian of his person and estate, according to the "petition on file." This was a sufficient compliance with section 1707, Code of Civil Procedure, which provides that the citation shall contain "a brief statement of the nature of the proceeding." [3] But even if a more formal notice were required under our law, we would be bound to hold that it had been given and that jurisdiction had been obtained for all purposes, in the absence of a showing to the contrary, because in the order appointing a guardian there is a recital that the matter "came on regularly to be heard." Estate of Schulmeyer, 171 Cal. 340, 153 Pac. 233. [4] There is no merit in the contention that the jurisdiction of the court depends upon compliance with the requirements of section 1747 of the Code of Civil Procedure. That section relates to guardians of minors. The law on the subject of guardians of incompetent persons is set forth in sections 1763 et seq. of the Code of Civil Procedure. Matter of Coburn, 165 Cal. 202, 131 Pac. 352; Estate of Schulmeyer, supra. was security in accordance with section 2904, One who has acquired an interest in pledgobligation for which the pledge has been made, ed property, and tenders performance of the may maintain an action against the pledgee for conversion upon his refusal to deliver the pledged property on demand. On Rehearing. 5. CORPORATIONS 123(16) PLEDGE OF STOCK-INTEREST OF THIRD PERSONS-JUDG MENT. three-fifths of corporation stock pledged, it was Where plaintiff had acquired an interest in not error, in a suit for the possession of such stock, to give an alternative judgment that, if defendant failed to deliver his stock and note which it secured, plaintiff was entitled to damages equivalent to three-fifths of the value of the stock. [5] Appellant's theory that error was committed by the court in omitting to make formal findings is not correct. There is sufficient finding of the ultimate fact in the recital contained in the order appointing the guardian that "said Salvador Espinosa is an incompetent person as alleged in the petition and that the allegations of the petition are true." Authority last cited above is conclu-manded for retrial on single issue. sive upon this point. Department 1. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge. [6] There is absolutely no support for the appellant's final assertion that the court abused discretion in the appointment of Mr. Gould instead of the petitioner, who was appellant's brother. In the absence of a transcript of the testimony and proceedings before the court, of course, there could be no successful attempt to establish abuse of discretion, because all intendments and presumptions are in favor of the regularity and propriety of the order. Action by Eckley B. Bumiller against Arthur W. Bumiller. Judgment for plaintiff, and defendant appeals. Reversed and re Overton, Lyman & Plumb, of Los Angeles, for appellant. Edwin A. Meserve and Shirley E. Meserve, both of Los Angeles (J. D. Taggart, of Los Angeles, of counsel), for respondent. RICHARDS, Judge pro tem. This is an action in which the plaintiff seeks to recover from the defendant the possession of 25 shares of stock of the Western Union Oil Company or its value, with damages for its The judgment and the order appointing detention. The plaintiff alleges in her amend a guardian are affirmed. We concur: BUR, J. (179 Cal. 119) ed complaint that, being the wife of one Joseph F. Bumiller, she commenced on March ANGELLOTTI, C. J.; WIL- 14, 1914, an action against him in the county BUMILLER v. BUMILLER. (Supreme Court of California. On Rehearing, Oct. 31, -- (L. A. 4566.) Oct. 4, 1918. 1918.) PLEDGE OF 1. CORPORATIONS 123(7) 2. CORPORATIONS 123(7) PLEDGE OF STOCK-OWNERSHIP-PRESUMPTIONS. A pledgor of corporation stock, shown to have been in possession thereof and exercising acts of ownership over it, will be presumed to have been the owner of the stock, in view of Code Civ. Proc. § 1963, subds. 11, 12. 3. CORPORATIONS 123(23) PLEDGE OF STOCK-REDEMPTION-SUBROGATION. A plaintiff, who has acquired an interest in corporation stock pledged, may redeem it from the lien under Civ. Code, § 2903, by an offer of performance of the obligation of which the stock of Los Angeles for divorce and for a division of certain community property, of which the stock in question was alleged to be a portion; that in said action an interlocutory decree was duly entered on June 18, 1914, wherein it was adjudged and decreed that said stock, which was then standing on the books of the corporation in the name of one D. A. McGilvray, was the community property of the parties to that action; that the said stock had been pledged by said Joseph F. Bumiller to Arthur W. Bumiller, the defendant in this case, as security for the payment to him of the sum of $1,000, evidenced by a promissory note for that amount executed by Joseph F. Bumiller to said Arthur W. Bumiller: that a three-fifths interest in said 25 shares of stock was thereby awarded and set apart to said plaintiff as her separate property and estate, and that the said Joseph F. Bumiller be and he was thereby ordered and directed to transfer or cause to be transferred to said plaintiff said three-fifths inter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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. |