plaintiff, awarding to plaintiff possession of each of said certificates and said bond; it being further provided in each instance that if delivery or return of the property cannot be had, plaintiff should recover the value thereof as stated in the judgment. These values were severally stated and in the aggregate amounted to $5,017.50. The defendants appealed from the judgment and from an order denying their motion for a new trial.

It is not disputed that the complaint states facts sufficient to entitle the plaintiff to recover. (Willcox v. Edwards, 162 Cal. 455, [Ann. Cas. 1913C, 1392, 123 Pac. 276]; Cal. Const., art. IV, sec. 26.) Appellants also admit that the evidence is sufficient to justify the court in finding that all of the transactions involved were of the character alleged, except those involved in the account of one M. T. Zorn. We are satisfied, however, that the Zorn transaction was like the others. The defendants maintained an office in the city of Los Angeles in which they kept a blackboard for market quotations and maintained a telegraph operator, a manager, a bookkeeper, and agents for soliciting business. One of these agents, Mr. C. H. Marshall, introduced the plaintiff to that place of business, and suggested that there was a chance for plaintiff to make some easy money there by buying stock on margin. Upon being informed that plaintiff had never done business of that kind, Marshall compared it to horse-racing. He said: "It is just about the same as making a book. You bet that the stock will either go up or down. If you bet it goes up and it goes up, you win the equivalent of what you bet or what you buy." The transactions which followed, and which are set forth at great length in the record as occurring between the plaintiff and the defendants, were of the nature thus described and nothing else. After the plaintiff had invested a few hundred dollars there came a time when he was called upon for more cash to protect his margins, but did not have the money. In lieu of cash the defendants accepted from plaintiff the certificate for ten shares of Northern Pacific Railroad stock as collateral for plaintiff's account. The other deposits were made from time to time under like circumstances.

At the office of defendants the plaintiff was made acquainted with Mr. Zorn. Plaintiff's testimony concerning Zorn is not disputed and in substance is as follows: "He had some deals on there in corn, and they were calling him for

two hundred dollars. He asked me if I would give him a loan, or he would lose a whole lot of money, he claimed. I brought this certificate up the next morning and I told Mr. Marshall to protect this corn. It is unnecessary to follow

this matter through its devious course wherein the Zorn account was manipulated and shifted into plaintiff's name and the deposited shares of stock used for purposes not intended or authorized by the plaintiff. In further discussion of the case we will make no further separate mention of the Zorn transaction.

Appellants next contend that since the burden was on plaintiff to show the unlawful character of the transactions, and since there were many of those transactions, the court erred in allowing the plaintiff to make this proof in a wholesale manner and by general questions, for if any of these were lawful transactions and indebtedness arose out of them, defendants were entitled to hold plaintiff's collateral therefor. A great deal of evidence was received covering particular details of the several transactions, including numerous statements in writing made by the defendants. The character of the business of the defendants was thus thoroughly exposed to view. The facts as to the manner in which the business was done were almost wholly within the knowledge of the defendants and were not known to the plaintiff. This is peculiarly true of that portion of these transactions well along toward the end of them, when (the plaintiff then being "ahead of the house") the defendants got the plaintiff drunk for three days, during which time numerous transactions occurred, and then or soon thereafter nearly all of the "losses" occurred whereby they claimed that his collateral had been absorbed. The principal objection made by appellants under this head is to the following question put to the plaintiff by the court: "Subsequent to the time that you put up these collaterals was there ever any stock you owned sold by them for you in Los Angeles or anywhere else, after you put up these collaterals?" to which the plaintiff answered, "No, sir." Objection was made that the question was too general and called for the conclusion of the witness. This matter must be considered in the light of occurrences immediately preceding the asking of this question, as shown in several pages of the transcript. Plaintiff's showing of facts had progressed to a point where it was appropriate for the court

to intervene for the purpose of shortening the record and saving a large waste of time which would be consumed in proving the details of many transactions of apparently the same character. If any of those transactions were of different character and involved actual and legitimate sales, it would have been an easy matter for the defendants to point out the transactions upon which they relied to protect their claim to these collaterals. But this they did not do, and we are unable to see that the defendants were prejudiced by the ruling of the court.

The defendants called as their witness at the trial one Ellis M. Harris, who on and after November 1, 1912, was the manager of their Los Angeles office, and propounded to him the following question: "Do you know what the rules of the New York Stock Exchange are in regard to buying and selling stock?" Objection to this question was sustained, and was properly sustained, unless the rules of that exchange were in some way material and of benefit to the defendants. Some of the statements of account furnished by the defendants to the plaintiff contained a statement in the following form: "It is agreed between broker and customer: 1. That all transactions are subject to the rules and customs of the New York Stock Exchange and its clearing-house." There is no eviIdence that the defendants were members of the New York Stock Exchange, or transacted any of the plaintiff's business through that exchange, and if we may suppose that the rules of the New York Stock Exchange prohibit mere gambling and fictitious transactions, that fact would be of no value to the defendants if, in truth, the transactions between them and the plaintiff were not conducted in accordance with those rules. Neither at the time when the foregoing question was asked of the witness Harris, nor at any other time, was evidence offered tending to show that in any instance there was a genuine purchase by the plaintiff or a genuine sale by him. It is true that, referring to two or three orders received from the plaintiff, Mr. Harris testified that the orders were transmitted to New York, that the orders were executed and that the cotton mentioned was bought; but there is nothing to show that the word "bought" was used in any other sense than in the multitude of other transactions in which that word was current in the business of defendants. Harris admitted that never in his experience as an employee of the defendants did.

he know of cotton being actually delivered. As a specific instance: In referring to the last five hundred bales of cotton "bought" for the plaintiff (and which previously had been "sold" for him), the amount involved would be about sixty thousand dollars, and he said: "We did not get sixty thousand dollars from anybody, nor deliver any cotton at all." "Q. Isn't it true that those losses were merely differences between different days of the price of cotton? A. Different prices at which he bought and sold cotton." He said that the contracts were held by their correspondent in New York; and that he did not know whether plaintiff knew or not that there was any such transaction. Under the circumstances shown by this and by all of the evidence in the case, it is manifest that any rules of the New York Stock Exchange, whatever they might be, could not affect the plaintiff's rights in this case.

Appellants contend that the court erred in its findings as to the value of the property involved. At the trial an attempt was made by the attorneys for the respective parties to agree upon these values. Plaintiff's attorney claimed that he was entitled to the value of the property as of the dates when the certificates and bond were deposited. Defendants' attorney claimed that the value should be taken as of December 17, 1912, the day when plaintiff made his demand for their return to him. As to the latter date, defendants' answer admitted values amounting to only $4,848.75. The answer of defendants had admitted values at the date when the properties were deposited by the plaintiff with the defendants, which admitted values in the aggregate amounted to $5,017.50, or $168.75 more than the values at the time of the demand. The court in its decision adopted the larger figures, proceeding evidently upon the theory that the value should be fixed as of the earlier dates. Appellants now contend that the court's findings as to values are wholly without support in the evidence, because there is no evidence of the value of the property at the time of the trial, which they now for the first time contend is the time for which the values should have been fixed. It is provived by the Code of Civil Procedure, section 667, that "In an action to recover the possession of personal property, judg ment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention." As no damages for the detention of the property

were allowed, that element need not be considered. It is said that there is only one decision upon this precise point. In Phillips v. Sutherland, 2 Cal. Unrep. 241, [2 Pac. 32], it was held that in an action of this kind, where the judgment is in the alternative, the value of the property should be fixed as of the day of the trial as being nearest to the time when the property would be delivered. Under the stipulations made as above stated, we do not think that the losing party should be allowed on appeal to object for the first time that the findings are wholly unsupported by the evidence. In substance he conceded that on any theory of the case the values to be found by the court would amount to at least $4,848.75. So far as this matter is concerned, the only relief to which he should be entitled would consist in reducing the amount of the judg ment by deducting therefrom the sum of $168.75. This may the more readily be done because, unless controlled by the decision above cited, it is our opinion that the value of the property at the time when demand for its delivery was made is the value which should prevail.

It is contended by appellants that the court erred in refusing to allow a continuance at the close of the evidence presented on behalf of the plaintiff. When the plaintiff presented his amendment to the complaint at the beginning of the trial, the defendants made no objection thereto, but stated that they would desire to have a continuance. The court responded that the plaintiff might introduce his evidence, and that whenever it became necessary in the interest of fair play to get the defendants' evidence on the transactions in cotton, the court would adjourn the trial of the case for such time as was necessary. After the plaintiff had rested his case, the attorney for appellants stated that on account of the cotton. transaction having been received as part of the evidence, he would want further time before he could finish putting in his defense; that it would be necessary for the defendants to show that the deals in cotton were actually made, and he was not prepared to produce such evidence at that time. He said. that the man Marshall was not then in the employment of the defendants, and they had no means of communicating with him, and did not know whether they could find him or not. He said he wanted to prove that the cotton deals were actually carried out on the New York exchange; that there was a telegraph line from their office to New York, and messages were