I concur in the judgment, though with some hesitation. The complaint alleges a sale by the plaintiff's assignor "to the defendants," and the finding and judgment is in accordance with this allegation. There is no evidence tending to support this allegation or finding. But the evidence of the daughters of the defendants tends to prove that the defendant appellant authorized them and their mother, or one of them, to purchase the furniture on his account; and though their testimony is not altogether satisfactory, yet it would perhaps have justified the court in finding that the furniture was purchased by the appellant defendant. Were there such a finding, the case would come within the application of the decision in Dobbs v.Purington, 136 Cal. 70, [68 P. 323]; but in the absence of such a finding, it is difficult to bring the case within that ruling. It is clear, however, that the joint sale to the defendants found by the court was also several; and the court finds that the appellant defendant "authorized the purchase of [the goods] and the delivery thereof " to Mrs. Cunningham, which would seem, in effect, to find that the purchase was on account of Cunningham. In support of the judgment, therefore, we may perhaps assume that there is a finding of a purchase by the appellant defendant, and disregard the finding as to Mrs. Cunningham's participation in the sale as being an erroneous conclusion of law from the evidence and immaterial. Upon this construction of the findings, the case would come within the application of Dobbs v. Purington, 136 Cal. 70, [58 P. 323].
But here another difficulty presents itself. There is, as I have said, absolutely no evidence tending to show a joint purchase. The apparent transaction, as shown by the evidence without contradiction, was a sale by the plaintiff's assignor to Mrs. Cunningham personally. Nor is there any evidence in the record tending to show that the transaction was different, except that of the daughters. Assuming this to be true, the transaction presented by the evidence was that of a purchase by an agent of an undisclosed principal in her own name. Such being the case, according to what seems to be the preponderating weight of authority, the plaintiff's assignor would have been put to its election, either to pursue the agent as the apparent principal or to pursue the real principal when disclosed. (Thomas v. Moody, 57 Cal. 215; *Page 690 Puget Sound Lumber Co. v. Krug, 89 Cal. 244, [26 P. 902]; 40 American Digest, col. 1276, sec. 499; Story on Agency, sec. 291; Anson on Contracts, 462; 1 Parsons on Contracts, 63, 549.) Here the evidence of the election upon the part of the plaintiff's assignor, after a full knowledge of the transaction, to pursue Mrs. Cunningham as the purchaser, is clear and uncontradicted; and even after the commencement of the suit a chattel mortgage was taken by the plaintiff from Mrs. Cunningham on the furniture. The plaintiff, therefore, stands in the position of at once asserting an interest in the furniture by virtue of this mortgage, and of pursuing also the appellant defendant. This, under the rule cited, is not permissible, and assuming the rule to be as expressed, his election to pursue Mrs. Cunningham operated as a discharge of his claim, if any, to sue the appellant defendant. But I am not altogether satisfied of the propriety of the rule.
In this state of doubt, in support of the action of the court below, and upon the authority of Dobbs v. Purington, I feel constrained to concur in the conclusion of the majority of the court.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 19, 1906.