Goddard

Appellant, a citizen of Pennsylvania, hereinafter referred to as plaintiff, brought this action at law to recover of appellee, a California corporation, hereinafter referred to as defendant, the sum of $49,-280. The District Court sustained general demurrers and special demurrers for uncertainty to both counts of plaintiff’s second amended complaint, hereinafter referred to as the complaint, denied plaintiff’s motion for leave to file a third amended complaint, and thereupon entered judgment dismissing the action. This appeal followed.

The first count of the complaint alleges, in substance, that plaintiff constituted defendant his agent for the purpose of making a loan of $49,280 to Earle C. Dingwell; that plaintiff placed said sum of money in defendant’s hands and instructed defendant, as plaintiff’s agent, to make said loan upon the security of a certain proposed trust indenture, “as, if and when, and only as, if and when,” the title to certain property, real and personal, was held by defendant, as trustee, under the proposed indenture, subject only to certain specified incumbrances; that said authorization was also “contingent and conditional upon” all of Dingweil’s creditors…

(concurring).

I concur in the opinion of Judge MATHEWS. The second amended complaint was framed upon the theory that, by reason of the failure of the appellee to carry out the instructions given it by the appellant with reference to the terms and conditions under which $49,280 belonging to the appellant should be loaned, the appellee thereby converted the money to its own use and was liable to the appellant for the full amount. This theory of conversion was also presented in the brief of the appellant, but on argument it was abandoned. He also abandoned the theory that the authority of appellee to make the loan could be rescinded after the loan had been made. Appellant thus conformed to the theory which had been advanced by appellee and made the basis of the action in the trial court; namely, that the only cause of action stated was one for a violation of instructions given by appellant to appellee as his agent. It. was conceded below, and is conceded here, that, if such instructions were violated as alleged, appellant was entitled to recover all damages suffered by reason of appellee’s disregard of the instructions given it.

Appellee demurred to the? complaint in the court…

(dissenting).

The situation presented by the third amended complaint is one not unusual in the great depression. The plaintiffs nephew, then insolvent, had equities in a large number of valuable properties in Southern California cities, twenty parcels including eighteen apartment houses and “Professional Building.” He solicited his uncle, east in Pennsylvania, to lend him money enough to tide him over, until the equities’ value should rise above his indebtedness and lift him out of his insolvency. The nephew’s equities, constituting what must have been a “substantial” rent roll, were jo be administered first for his creditors’ benefit and then for him. The trust company defendant was instructed to complete a draft of a trust instrument transferring to it as security the nephew’s interest in twenty real properties, and the furniture in many of the apartment houses, all described in an exhibit attached to the draft, and, when completed, loan the nephew $49,280. It is alleged these instructions were disobeyed in important particulars and the loan made without a valuable part of the instructed security.

By two amendments to his complaint the plaintiff attempted to tender an…