I dissent. This is an action for conversion of merchandise and money, alleged to have been received by defendants, which belonged to plaintiff, and which, upon demand, they refused to deliver to plaintiff. It is also alleged that defendants admitted in writing their wrongful receipt of the property.
The answer denies the receipt of the property by the defendants and the making of the alleged admission, and by way of counterclaim sets up the wrongful taking and withholding by plaintiff of certain personal property of defendants.
At the close of plaintiff's evidence, the court, on motion, granted a nonsuit as to the defendant A.S. Cooper, and at the conclusion of the trial, ordered judgment against the other defendant, who appeals from the judgment entered against her.
The court found that it was true that the defendant Anne E. Cooper received, between July 22, 1922, and January 5, 1924, merchandise and money to the amount alleged in the complaint, which belonged to plaintiff; that plaintiff upon discovery of the facts, on November 23, 1924, made demand upon defendant for return of the property, but that she failed to return it; that said defendant on November 24, 1924, signed an admission in writing that she had received money and property belonging to plaintiff, in the amount claimed.
The appellant had been employed by the plaintiff in his store in Tulare, and had quit her employment and moved with her husband to Stockton. While on a visit to Tulare *Page 225 she was observed by a Mrs. LaPosea taking some articles of wearing apparel.
A few days later, at the instance of plaintiff, Mrs. LaPosea went to Stockton to get a settlement with appellant for property stolen. Appellant admitted considerable thefts from plaintiff while in his employ, amounting to $1,000 in value and signed a written admission as follows:
"Stockton, California, "Nov. 24, 1924.
"I hereby voluntarily admit I stole from N.H. Leggett, of Tulare, California, the following listed amount. I hereby release and forever discharge the N.H. Leggett, their officers, agents and employees, jointly and severally, from all claims I now have or ever had against them, their officers, agents and employees, by reason of any statement, charge or thing whatsoever made by them concerning me. I sign this of my own free will under no duress and with no promise of immunity. Merchandise and money for 14 months, ending about Jan. 5, 1924, amounting to one thousand dollars $1,000.00.
"(Signed) MRS. A.S. COOPER."
The only evidence introduced by plaintiff in support of his cause of action was the above signed statement and the testimony of Mrs. LaPosea of the theft by appellant, on the occasion of her visit to Tulare, of articles worth about $24, and the additional testimony of Mrs. LaPosea and her husband relating to their conversation with the appellant in Stockton, which was practically to the same effect as the signed statement. No evidence of the taking of any specific article or money was introduced. Mrs. LaPosea further testified to the recovery by her, with the assistance of appellant's husband and, apparently without appellant's knowledge, of a large amount of merchandise with plaintiff's tags on the articles, which were shipped back to plaintiff.
The plaintiff himself testified at the trial as follows: "Q. You are jocular when you say two truck loads, you are not testifying as a fact you recovered two truck loads? A. I think the automobile made three, if not three or four big sedan cars, and I am not sure one of the transfer men didn't go down and bring up a load also. That was Tulare."
He further testified: "I didn't take any inventory. Those *Page 226 goods were placed in a box, and they were nailed up, and they have been nailed up ever since."
The plaintiff alleged in his complaint a demand and refusal of appellant to return the goods. As his testimony and that of his other witness was to the effect that a considerable part of the goods was returned and was in his possession at the time of the trial, he failed to sustain the charge in the complaint that the goods were not returned, at least to the extent of the value of the goods that were returned. Aside from the fact that those articles were returned, he had no evidence, except the general confession of appellant, that any goods were taken. As to what the value of the goods returned was, he, certainly, and probably no one else, was in a position to ascertain.
As the allegation of the complaint as to the return of the goods, and the finding of the court thereon, is not supported by the evidence, the judgment should be reversed. The pleadings in the case are not so framed as clearly to present the issues, and should be amended.
The judgment should be reversed and the court below directed to try the cause anew upon such amendments to the pleadings, if any, as the parties may be advised to make.