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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. vived by the Code of Civil Procedure, section 667, that “In an action to recover the possession of personal property, judgment 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

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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

received in New York about this cotton, and the cotton was bought and sold according to the order and report got back to Los Angeles and given to the plaintiff. Upon suggestion of defendants' attorney that he could put the evidence in the form of an affidavit, the court stated: “It is not necessary. I am assuming every word you say to be true, and no affidavit is necessary; but I say, assuming all that you have said to be correct, I do not see any reason for a continuance." The following also occurred: The Court: “But you don't claim that this man ever owned any cotton in his life, or put up one cent of money as the purchase price of the cotton ?” Defendants' attorney: “It does not make any difference whether he ever owned any cotton in his life or ot. The court has stated that it is perfectly legal to make a contract to sell something he hasn't got." Thereupon, the continuance having been denied, the defendants introduced the testimony of several witnesses. One of them, the witness Harris, manager of the office of defendants, referred to the cotton deals as follows: "Two or three days after I came to Los Angeles (which would be two or three days after November 1, 1912), I asked Mr. Hartnett for some more money to protect us on some cotton that we were carrying for him; he told me he wouldn't be able to take care of it at that time, and we bought in five hundred bales, I think, November 6th, and I told him we would put a stop loss order on the remaining five hundred bales at 1215. I told him it would be bought in when it reached 1215. He said if it would go up there, it would have to be closed out, if it reached that point before he heard from the east. He made no objections to my closing it out. That is one of the two cotton transactions I spoke of before. The other one is the one we bought in the day I first spoke to him about margin, hecause he said he didn't have any money, and he would lighten up his load by buying in half his commitments, which was five hundred bales. These two days were about five days apart, I think. The day he told me we had better lighten up his load by buying five hundred, I entered an order to buy five hundred bales January cotton at the market. It was bought. The other time there was an order entered with our New York correspondent to buy if it reached a certain point. That was bought too at 1215." Defendants made no further attempt than as above shown to prove the good faith and reality of their transactions with plaintiff.

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Let the statements made by defendants' attorney be treated as a substitute for an affidavit; they nevertheless were not sufficient to require that the court grant a continuance. It was not stated that Mr. Marshall could or would testify to the facts referred to by the attorney; nor that other witnesses upon whom the defendants must rely were not within call on the day of the trial. For aught that appears, the defendants themselves were then in court or at their office in Los Angeles. It may be that books, contracts, and other documents were in the hands of the defendants which, together with testimony of defendants or of their bookkeepers and other agents in the city where the case was on trial, would have proved all of the facts covered by the statement made in connection with the application for a continuance. Moreover, the allegations of fact introduced into the case by the amendment of the complaint at the day of the trial were all of evidentiary matter which would have been provable in the case without such allegations. This was an action for the recovery of personal property wherein the plaintiff had alleged all the facts necessary to a complaint in that kind of an action, including the facts of ownership by the plaintiff and his right to immediate possession and the wrongful possession by the defendants, the demand for a return of the property and refusal thereof. The defendants were fully acquainted with the facts upon which the determination of the case must depend and adequately warned of the nature of the plaintiff's claims. Our conclusion is that the refusal of a continuance under the circumstances shown did not constitute an abuse of the discretion vested in the court as to that matter.

In addition to the foregoing matters directly involved in the appeals herein, we are required to consider a motion presented by counsel for appellants whereby they ask for an order staying all proceedings in the action on the ground that since the rendition of the judgment appealed from, and since the time of the appeal, the defendants have been duly discharged in bankruptcy. The motion is accompanied by a certified copy of an order duly made in the district court of the United States for the Northern District of California, discharging the defendants from all debts and claims provable under the acts of Congress relating to bankruptcy, and which existed on the seventh day of November, 1914, when the petition for adjudication of bankruptcy against them was filed; with the usual

exceptions, none of which require attention at this time. Respondent in reply to the motion shows that the appeal from the judgment herein was taken and a stay bond filed by appel. lants on the sixteenth day of July, 1913, which was about sixteen months prior to the commencement of the bankruptcy proceedings. That an undertaking was given as required for a stay of proceedings under section 943 of the Code of Civil Procedure, and was conditioned that the defendants will obey the orders of the appellate court upon the said appeal. Respondent concedes that this court may appropriately make an order perpetually staying execution as against the appellants themselves; but insists that he is entitled to an affirmance of the judgment in order that he may prosecute his rights under the bond. That he is so entitled, and that an action may be maintained upon such bond, we do not doubt. .

Regardless of the suggestion thus made with respect to the existence of a stay bond, we also think that appellants are not on this motion entitled to anything more than is thus conceded to them by counsel for respondent. The principal object of the judgment was to enforce the plaintiff's right to have certain personal property restored to his possession. If that property remains in the possession or under the control of the defendants, it may be redelivered to the plaintiff, in which event the alternative money judgment would be of no consequence. We are not aware of anything in the bankruptcy proceedings which would prevent such return of his property by the defendants to the plaintiff. The respondent is entitled to a determination of this appeal, so that if the judgment be affirmed he may recover that property; and since the condition of the bond was that the defendants would obey the order of this court upon the appeal (which upon an affirmance of the judgment would in substance be an order for the return of the property), we see no reason why the respondent is not equally entitled to a determination of the appeal so that if the judgment be affirmed he may assert his rights with respect to that bond. All the protection to which the appellants are entitled by reason of a discharge in bankruptcy will be obtained by them under an order perpetually staying proceedings by execution or otherwise, against them, to realize upon the alternative money judgment which was rendered against them.

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