As part of the argument that the declarations of Terrill were admissible to prove his want of title to the certificate of stock in the defendant corporation, we said in the opinion herein that in the operation of making the transfer on its books from Lochhead to the bank, the title to the certificate, in legal effect, passed from Terrill to the defendant, and from the defendant to the bank. In a petition for rehearing, defendant vigorously assails the idea that the title passed in that manner through the defendant. The actual passage of the title to the certificate to the defendant as a medium of transfer is not essential to the argument that Terrill's declarations were admissible against defendant, and perhaps the remark to that effect was obiter dictum, though we do not say it was erroneous. The other portions of the argument sufficiently show that defendant's right to make the transfer was derived from Terrill (Tafft v. Presidio etc. R. Co.,84 Cal. 131, 138, [18 Am. St. Rep. 166, 11 L. R. A. 125, 24 P. 436]), and, hence, that his declarations tending to impeach his right are admissible.
The evidence raised the inference that Terrill claimed the certificate either as pledgee to secure a debt due from Lochhead to him for medical services to Lochhead, or as owner by virtue of a sale by Lochhead to him in payment for such services. For this reason declarations of Terrill tending to show gratuitous service to Lochhead were admissible, if made during or after the rendition of the service, although made before Terrill was shown to have had possession of the certificate.
Melvin, J., Lawlor, J., and Angellotti, C. J., concurred. *Page 165