(2 Cal. Unrep. 456) SUPREME COURT OF CALIFORNIA. ROSBOROUGH v. BOARDMAN. (No. 9,947.) OFFICE OF COUNTY ASSESSOR OF ALAMEDA COUNTY. The California county government act of March 14, 1883, did not go into effect for the purpose of creating county offices until January 1, 1885, and therefore prior to that date there was no such office as county assessor of Alameda county. In bank. Application for mandamus to compel the auditor of Alameda county to draw a warrant for payment of petitioner's salary as assessor of a county. R. A. Redmond, for petitioner. S. P. Hall, W. R. Davis, and D. C. Robinson, for respondent. BY THE COURT. If there was not, immediately preceding the date of the passage of the act to "establish a uniform system of county and township governments," (approved March 14, 1883,) any such office as that of "county assessor of Alameda county," there is not any such office now, unless it was created by some provision of that act; and if such an office was created by any provision of that act, such provision did not take effect prior to the first Monday after the first day of January, 1885, as clearly appears by section 181: "Any provision of this act, creating a county office in any county, shall not (except for election purposes) take effect prior to the first Monday after the first day of January, eighteen hundred and eighty-five." St. & Amend. Codes 1883, p. 365. The petitioner's alleged appointment was made prior to the first day of January, 1885, and before any provision of the act of March 14, 1883, "creating a county office" in Alameda county, had taken effect. Petitioner, however, insists that the act of February 10, 1874, which abolished the office of county assessor of Alameda county and created township assessors therein, was repealed by section 4109, Pol. Code, which went into effect March 7, 1881. The later act does not expressly repeal the former; and, as we are unable to discover any repugnancy between the two, we cannot hold that there is a repeal by implication. As the right of the petitioner depends (1) on there being such an office as that which he claims to have been appointed to fill, at the date of his alleged appointment; and (2) on there being a vacancy in the office at that date,-it follows from the foregoing that his application for a writ to compel the respondent to draw his warrant on the treasury for the payment of his (petitioner's) salary as "county assessor" must be denied. Application denied. v.6p,no.7-29 (66 Cal. 545) GROSINI v. PERAZZO and others. (No. 8,851.) Filed March 31, 1885. 1. ACCOUNTING BY PARTNER-INTERVENTION OF CREDITORS. Where one partner seeks an accounting by action against another, partnership creditors may all join in an intervention for the purpose of reaching partnership property fraudulently disposed of by the defendant; separate application for intervention by each creditor is unnecessary. 2. INTERVENTION-FINDINGS AS TO ALLEGATIONS NOT Denied. If facts alleged in the complaint of intervention are not denied by the answer, they are deemed admitted, and no finding as to them is necessary. 3. APPEAL-REVIEW OF FINDING ON ABSENCE OF EVIDENCE. Where on appeal the evidence is not before the court, a finding on an issue arising under the statute of limitations will not be reviewed. Department 1. Appeal from the superior court of the city and county of San Francisco. L. Quint and E. D. Sawyer, for appellant. W. H. Payson and Tilden & Tilden, for respondent. MCKINSTRY, J. 1. The appellant contends that the demurrer to the complaint of intervention, on the ground of misjoinder of causes of action, should have been sustained. The plaintiff brought his action to obtain a decree that Perazzo account for the value of all the property of the alleged copartnership, etc. As creditors of the partnership, the intervenors were interested in the subject-matter of the suit adversely to Perazzo, if, as alleged, he had fraudulently caused the partnership property to be dissipated, or placed beyond the reach of the partnership creditors, by a sale of it, the proceeds of which he appropriated. Perazzo's liability was not limited by the amount which the property brought at the sale, but extended to an amount equal to the value of the property. Yet the proceeds of the sale, or such proceeds with an additional sum which would make an amount equal to the value of the property, were to be treated by a court of equity as a fund in his hands in which the creditors of the partnership were beneficially interested. True, each of the intervenors had a separate claim to the extent of the partnership indebtedness to him, but as Perazzo was not individually liable to any one or all of them beyond the amount of the fund in his hands, they had a common interest in the fund, which Perazzo had become liable to distribute as the result of his fraudulent conduct, and which a court of equity might very properly distribute without a separate application by each of the intervening creditors. 2. Appellant points out that there was no finding by the court below that plaintiff or defendants are insolvent. But there is an averment in the complaint of intervention "that said firm have no other property, and said partners are each of them insolvent," etc., which is not denied by the answer. 3. As to the statute of limitations, the intervention was not demurred to on the ground that the limitation had run. The court below found adversely to defendant appealing upon the issue as to the statute, and the evidence is not before us. Judgment affirmed. We concur: (66 Cal. 542) MCKEE, J.; Ross, J. (No. 8,681.) GOLDSTEIN v. NUNAN. Filed March 31, 1885. 1. SALE-FRAUD-CHANGE OF POSSESSION. Where a vendee, after a sale, employs one of the vendors to take charge of the property, the subject of the sale, this will tend to prove that the sale was fraudulent, and that there has been no actual or continued change of possession, but is not conclusive of the question, and is merely an element of proof to be weighed by the jury. 2 FINDINGS-CONFLICTING EVIDENCE. Where the evidence'is conflicting, the findings based thereon will not be disturbed. 3. EVIDENCE-ERROR IN ADMITTING, AS GROUND FOR REVERSAL. A reversal is not warranted because of error in admitting evidence as to immaterial matter. Department 1. Appeal from the superior court of the city and county of San Francisco. G. F. & W. H. Sharp, for appellant. Lloyd & Wood and Naphtholy, Friedenrich & Ackerman, for respond ent. BY THE COURT. The verdict in favor of the plaintiff includes a finding that the goods subsequently attached by the defendant as sheriff were actually delivered to and continuously remained in the possession of the plaintiff. It is insisted by appellant that the fact that the vendor, Goldstein, was, a week after the sale, employed by plaintiff as a clerk, and continued in such employment for about a week, when he was discharged, establishes, as matter of law, the sale to have been fraudulent. The case shows, and indeed it seems to be admitted by appellant, that the goods were actually delivered. to plaintiff, and that he remained in the actual and exclusive possession of them for several days. The employment by the vendee of one of the vendors after the sale, while it tended to prove that there had been no actual and continued change of possession, was not conclusive of the question, but was only an element of proof to be weighed by the jury. Godchaux v. Mulford, 26 Cal. 316. The evidence pro and con as to an actual delivery and continued change of possession was submitted to the jury, and as there was a conflict in it, we cannot set aside the verdict on the ground that the facts proved conclusively show no continued change of possession. As the defense was that there was no continued change of possession, and as the jury were instructed that unless there was an actual delivery, and an actual and continued change of possession, of the property, the sale was fraudulent as against creditors, the error in admitting in evidence statements made by Goldstein to attaching creditors, prior to the sale, (if error it was,) could not have injured the defendant, since the real issue, as to an actual delivery, etc., was unaffected by such evidence. It is contended by appellant that the court below erred in denying defendant's motion to strike out all parol evidence as to the bill of sale. Appellant's counsel does not refer to the page or folio of the transcript at which it appears that the motion was made, and we have been unable to find such motion in the statement on motion for a new trial. Judgment and order affirmed. (66 Cal. 546) WOOD v. McDONALD. (No. 8,759.) Filed March 31, 1885. 1. CONVERSION-DEMAND, WAIVER OF AND REFUSAL TO DELIVER AS. Proof of a demand will be excused in actions where a demand is unnecessary to fix the defendant's liability, on showing circumstances which would prove that a demand would be unavailing; as a statement in advance that defendant will not deliver property converted, or a refusal by the defendant to listen to a demand. Defendant is liable on proof that he converted the property either before or independent of the demand. 2. SAME-ANSWER-EFFECT OF ADMISSION. Where a defendant's answer in conversion, after averring a failure of demand, alleges that had such demand been made defendant would have refused to deliver the property, proof of demand is unnecessary. 3. SAME DISCHARGE IN INSOLVENCY NO DEFENSE. A discharge in insolvency is no defense to an action against the insolvent for conversion to plaintiff's property. Department 1. Appeal from the superior court of the county of Monterey. N. A. Dorn and W. M. R. Parker, for appellant. S. F. Geil and H. B. Morehouse, for respondent. MCKINSTRY, J. This is an action to recover personal property. The court below gave judgment in favor of plaintiff for delivery, etc., and denied the defendant's motion for a new trial. The appellant (defendant) makes three points: First, it was not proved that plaintiff made demand for the property; second, the court below failed to find, upon the issue made by the defendant's averment in his answer, that he had been discharged from his debts in an insolvency proceeding; third, the court erred in sustaining the plaintiff's objection to the introduction in evidence of the certificate of discharge. When property has come rightfully into the hands of the defendant, a demand for it, and a refusal to deliver it, are evidence of a conversion. The testimony of the witness as to demand was: "I said to Mr. McDonald, who had previously wanted to buy the property, I want that feed and seed.' He then wanted me to give him one day, and he would buy it of me. I then said, I must have the feed and seed or pay for it by to-morrow,' and he said he would then raise the money and buy it from me; and he never came to see me or offered after that to buy it, and he refused to deliver the property to me." It is not necessary to decide whether the foregoing testimony established a demand and refusal. Proof of any circumstance which would satisfy a jury that a demand would be unavailing,-as a refusal by the defendant to listen to one, or a statement in advance that he will not deliver,—will be sufficient to excuse proof of a demand. Wells, Repl. 373, and cases cited in note. If there is proof that defendant had converted the property before or independent of the demand, such conversion-the material matter-will render the defendant liable. Bristol v. Burt, 7 Johns. 257; Gilmore v. Newton, 9 Allen, 171. "Conversion" is complete when the party in possession has appropriated the property as his own. The term does not imply any change in the condition of the goods. Wells, Repl. 351. Thus, if one originally in the rightful possession of goods refuses to deliver them to the owner on demand, the refusal is evidence of a conversion, although the goods bave neither been sold nor changed in form, but remain in the possession of the wrong-doer, just as they were before. The refusal to deliver is a declaration by the possessor that he has made up his mind to assert the property to be his own, or, at least, that he has determined not to return it. It would seem upon principle that evidence that he had so determined before the commencement of the actionsuch as evidence of his subsequent admission to that effect-should relieve the plaintiff of the nécessity of proving demand and refusal. In the case at bar the defendant, in his answer, after alleging that the plaintiff did not demand possession of the property before the commencement of the action, avers: Defendant says that he would have refused to deliver the possession of said property if demand had been made for the same. And this averment is verified by the defendant's oath. It would be difficult to frame a more conclusive confession of a conversion prior to the beginning of the suit. The second and third points of appellant may be considered together. The failure to find whether the defendant had been discharged of the claim asserted in this action is immaterial, if, as matter of law, the insolvent court could not, by its decree of discharge, transfer the title of plaintiff's property to the defendant, and prohibit the plaintiff from maintaining any action to recover it. The property here sued for never constituted any part of the insolvent's estate to be distributed to creditors or otherwise disposed of through the proceedings in insolvency. Judgment and order affirmed. We concur: Ross, J.; MCKEE, J. |