It follows, from the foregoing views, that the judgment should be affirmed. It is so ordered. CONTRACTS-RESTRAINT OF TRADE. — As to what contracts are void as being in restraint of trade, see Western Wooden-ware Ass'n v. Starkey, 84 Mich. 76; 22 Am. St. Rep. 686, and note; note to Callahan v. Donnolly, 13 Am. Rep. 173-176; note to Angier v. Webber, 92 Am. Dec. 751-765. One may legally purchase another's business under an agreement on the latter's part not to carry on the same business in the same territory: National B. Co. v. Union H. Co., 45 Minn. 272. But all agreements, contracts, and combinations having for their object the establishing of monopolies are void as in restraint of trade and against public policy: Richardson v. Buhl, 77 Mich. 632. CONTRACT, BREACH OF LIQUidated DamagES. For a discussion of the subject of liquidated damages, see extended note to Williams v. Vance, 30 Am. Rep. 28-36; extended note to Graham v. Bickham, 1 Am. Dec. 331-340. Where it is manifest that ascertaining the actual damages would be a difficult matter, the parties may stipulate in their contract liquidating damages for a breach thereof: Hamilton v. Overton, 6 Blackf. 206; 38 Am. Dec. 136; Cotheal v. Talmage, 9 N. Y. 551; 61 Am. Dec. 716; Studabaker v. White, 31 Ind. 211; 99 Am. Deo. 628. [IN BANK.] SWIM v. WILSON. [90 CALIFORNIA, 126.] - TROVER-CONVERSION BY SELLING STOLEN CERTIFICATES OF STOCK. A STOCK-BROKER WHO SELLS certificates of stock received by him for sale from one who stole them is guilty of a conversion of them, and is liable to the true owner of the stock for its value, although the thief, at the time he delivered to him the stock, represented himself to be its owner, and the broker, in good faith, and without notice of the theft, Bold the stock and paid to the thief the proceeds of the sale. And in an action to recover the value of such stock, it is no defense that the de fendant, in selling the stock, acted as agent for a third person, who claimed to own it, although he acted in good faith, and in ignorance of such third person's want of title. ACTION to recover value of certain shares of stock. The opinion states the case. Wilson and Wilson, for the appellant. Tilden and Tilden, for the respondent. DE HAVEN, J. The plaintiff was the owner of one hundred shares of stock of a mining corporation, issued to one H. B. Parsons, trustee, and properly indorsed by him. This stock was stolen from plaintiff by an employee in his office, and delivered for sale to the defendant, who was engaged in the business of buying and selling stocks on commission. At the time of placing the stock in defendant's possession, the thief represented himself as its owner, and the defendant, relying upon this representation, in good faith, and without any notice that the stock was stolen, sold the same in the usual course of business, and subsequently, still without any notice that the person for whom he had acted in making the sale was not the true owner, paid over to him the net proceeds of such sale. Thereafter the plaintiff brought this action to recover the value of said stock, alleging that the defendant had converted the same to his own use, and the facts as above stated appearing, the court in which the action was tried gave judgment against defendant for such value, and from this judgment, and an order refusing him a new trial, the defendant appeals. It is clear that the defendant's principal did not, by stealing plaintiff's property, acquire any legal right to sell it, and it is equally clear that the defendant, acting for him, and as his agent, did not have any greater right, and his act was therefore wholly unauthorized, and in law was a conversion of plaintiff's property. "It is no defense to an action of trover that the defendant acted as the agent of another. If the principal is a wrongdoer, the agent is a wrong-doer also. A person is guilty of a conversion who sells the property of another without authority from the owner, notwithstanding he acts under the authority of one claiming to be the owner, and is ignorant of such person's want of title": Kimball v. Billings, 55 Me. 147; 92 Am. Dec. 581; Coles v. Clark, 3 Cush. 399; Koch v. Branch, 44 Mo. 542; 100 Am. Dec. 324. In Stephens v. Elwell, 4 Maule & S. 259, this principle was applied where an innocent clerk received goods from an agent of his employer, and forwarded them to such employer abroad, and in rendering his decision on the case presented, Lord Ellenborough uses this language: "The only question is, whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goodsto his master; but, nevertheless, his acts may amount to a conversion; for a person is guilty of conversion who intermeddles with my property, and disposes of it, and it is no answer that he acted under the authority of another who had himself no authority to dispose of it." To hold the defendant liable, under the circumstances disclosed here, may seem upon first impression to be a hardship upon him. But it is a matter of every-day experience that one cannot always be perfectly secure from loss in his dealings with others, and the defendant here is only in the position of a person who has trusted to the honesty of another, and has been deceived. He undertook to act as agent for one who, it now appears, was a thief, and, relying on his representations, aided his principal to convert the plaintiff's property into money, an 1 it is no greater hardship to require him to pay to the plaintiff its value than it would be to take the same away from the innocent vendee, who purchased and paid for it. And yet it is universally held that the purchaser of stolen chattels, no matter how innocent or free from negligence in the matter, acquires no title to such property as against the owner; and this rule has been applied in this court to the case of an innocent purchaser of shares of stock: Barstow v. Savage Min. Co., 64 Cal. 388; 49 Am. Rep. 705; Sherwood v. Meadow Valley Min. Co., 50 Cal. 412. The precise question involved here arose in the case of Bercich v. Marye, 9 Nev. 312. In that case, as here, the defendant was a stock-broker who had made a sale of stolen certificates of stock for a stranger, and paid him the proceeds. He was held liable, the court, in the course of its opinion saying: "It is next objected that as the defendant was the innocent agent of the person for whom he received the shares of stock, without knowledge of the felony, no judgment should have been rendered against him. It is well settled that agency is no defense to an action of trover, to which the present action is analogous." The same conclusion was reached in Kimball v. Billings, 55 Me. 147, 92 Am. Dec. 581, the property sold in that case by the agent being stolen government bonds, payable to bearer. The court there said: "Nor is it any defense that the property sold was government bonds payable to bearer. The bona fide purchaser of a stolen bond payable to bearer might perhaps defend his title against even the true owner. But there is no rule of law that secures immunity to the agent of the thief in such cases, nor to the agent of one not a bona fide holder. . . . . The rule of law protecting bona fide purchasers of lost or stolen notes and bonds payable to bearer has never been extended to persons not bona fide purchasers, nor to their agents." Indeed, we discover no difference in principle between the case at bar and that of Rogers v. Huie, 1 Cal. 429, 54 Am. Dec. 300, in which case Bennett, J., speaking for the court, said: "An auctioneer who receives and sells stolen property is liable for the conversion to the same extent as any other merchant or individual. This is so both upon principle and authority. Upon principle, there is no reason why he should be exempted from liability. The person to whom he sells, and who has paid the amount of the purchase-money, would be compelled to deliver the property to the true owner or pay him its full value, and there is no more hardship in requiring the auctioneer to account for the value of the goods, than there would be in compelling the right owner to lose them, or the purchaser from the auctioneer to pay for them." It is true that this same case afterwards came before the court, and it was held, in an opinion reported in Rogers v. Huie, 2 Cal. 571,56 Am. Dec. 363, that an auctioneer who in the regular course of his business receives and sells stolen goods, and pays over the proceeds to the felon without notice that the goods were stolen, is not liable to the true owner as for a conversion. This latter decision, however, cannot be sustained on principle, is opposed to the great weight of authority, and has been practically overruled in the later case of Cerkel v. Waterman, 63 Cal. 34. In that case the defendants, who were commission merchants, sold a quantity of wheat, supposing it to be the property of one Williams, and paid over to him the proceeds of the sale, before they knew of the claim of the plaintiff in that action. There was no fraud or bad faith, but the court held the defendants there liable for the conversion of the wheat. It was the duty of the defendant in this case to know for whom he acted, and, unless he was willing to take the chances of loss, he ought to have satisfied himself that his principal was able to save him harmless if in the matter of his agency he incurred a personal liability by the conversion of property not belonging to such principal. Judgment and order affirmed. CONVERSION, WHAT CONSTITUTES. Both he who sells personalty with out authority, and the one to whom such property is sold, are guilty of AM. ST. REP., VOL. XXV.-8 conversion: Note to Bolling v. Kirby, 24 Am. St. Rep. 797, 798; Velsian v. Lewis, 15 Or. 539; 3 Am. St. Rep. 184. A broker purchasing property from one who has no title, for value, and shipping it to his principal, is liable in trover to the true owner: Williams v. Merle, 11 Wend. 80; 25 Am. Dec. 604. A person is guilty of conversion who sells property of another without the owner's consent, even though he acts as the agent of one who claims to be owner, and is ignorant of his principal's want of authority: Kimball v. Billings, 55 Me. 147; 92 Am. Dec. 581. The purchaser in good faith of stolen goods is liable in trover to the owner, if he sold them subsequently: Courtis v. Cane, 32 Vt. 232; 76 Am. Dec. 174. But see Spooner v. Holmes, 102 Mass. 503; 3 Am. Rep. 491. [IN BANK.] CURTISS V. ETNA LIFE INSURANCE COMPANY. [90 CALIFORNIA, 245.] INSURABLE INTEREST — DEBT, THOUGH BARRED BY STATUTE OF LIMITATIONS, GIVES, IN LIFE OF DEBTOR.- A debt, even though not legally collectible by reason of the bar of the statute of limitations, gives to the creditor an insurable interest in the life of his debtor. STATUTE OF LIMITATIONS, RUNNING OF, Not Presumed FROM ALLEGATION IN PLEADING WHEN. - An allegation in a pleading showing money to have been loaned at a date sufficiently remote to admit of the running of the statute of limitations raises no presumption that the statute has run. But when the allegation is consistent with the opposite conclusion,- that is, that the debt is not barred, the defense must be raised by plea. INSURABLE INTEREST CONTRACT TO ADVANCE MONEY TO PERSON GIVES, IN HIS LIFE. A binding contract by one person to advance money to another on demand gives to the former an insurable interest in the life of the latter. And if such an agreement, to be valid, must be in writing, an allegation in a pleading that alleges that it was so agreed must be held to imply that it was so agreed in writing. INSURANCE POLICY ASSIGNMENT AS COLLATERAL SECURITY TO ONE HAVING NO INSURABLE INTEREST. A policy of life insurance issued to a credi tor of the assured may be assigned by such creditor as collateral security, and the assignee may enforce payment of the policy, although at the time of the assignment he had no insurable interest in the life of the assured, and notwithstanding the policy expressly provides that any claim made by an assignee shall be subject to proof of interest. An assignment as collateral security does not come within the meaning of such provision. The assignee in such case is a mere trustee for the assured. INSURANCE POLICY IS INSTRUMENT IN WRITING EXECUTED IN THIS STATE WHEN. - A policy of life insurance issued by an insurance company of another state, which expressly provides that it shall not be operative until countersigned by the general agent of the company in this state, and which is so countersigned, is a written contract executed in this state within the meaning of the statute of limitations. |