Hein

Plaintiff Ralph Hein brought this action to recover damages on an undertaking given by defendant Highland Insurance Company pursuant to Code of Civil Procedure section 917.2. The trial court sustained defendant’s demurrer to the first amended complaint, holding that plaintiff failed to state facts sufficient to constitute a cause of action, and entered judgment of dismissal. Plaintiff appeals.

An interlocutory judgment of dissolution of marriage between Ida Hein and August Hein, plaintiff’s assignor, was entered February 7, 1973. The judgment directed Ida to transfer to August a number of shares of stock in various corporations, having a market value on that date of $14,561. Ida appealed the interlocutory judgment. In order for Ida to obtain a stay of enforcement of the judgment pending appeal, defendant gave an undertaking pursuant to Code of Civil Procedure section 917.2.

On July 15, 1974, the remittitur from the Court of Appeal affirming the judgment was filed. On September 26, 1974, Ida delivered the stocks to plaintiff, August’s assignee. The market value of the stock on that date was $7,803.

Plaintiff contends that the trial court erred in holding that the…