THOMAS HARPER v. P. A. LAMPING, 33 Cal. 641

By the Court, Sanderson, J.: There had been one continuance by consent of parties, and the defendant had not only been unable to find the witness Brown, or to ascertain with any certainty his place of residence, but was unable to give any satisfactory assurance that he could obtain his testimony within any reasonable time. Moreover, his testimony does not seem to have been very material. It only went to the fact that the defendant had hypothecated twenty shares of stock, and afterwards allowed the stock to go in payment of the loan.

In that respect the vital fact was not whether the defendant had hypothecated the stock, but whether he had done so as the agent of the plaintiff, or whether the act of hypothecation was the act of the plaintiff or the defendant, and upon that point it was not pretended that Brown could give any evidence. It is true the Court at the trial found against the defendant as to the fact of hypothecation, but for the reason already suggested the finding is not material, for it may be conceded that the stock was in fact hypothecated without changing the final result.

Under these circumstances we think there was no abuse of discretion on the part of the Court in its ruling upon the defendant’s motion for a continuance. The point made upon the ruling of the Court in respect to the oral testimony of Langstaff as to what the plaintiff’s father said to him in England, and as to his telling the plaintiff of what his father had said, admits of substantially the same answer. The testimony only served to explain how the plaintiff came by the money which he had invested in the concern. So far as the defendant was concerned, it was of no consequence where the plaintiff got his money.

The only material question in that connection was, did he pay in money, and how much, and not where he got it. Doubtless the evidence was irrelevant, and perhaps technically incompetent if relevant; but we do not regard the matter as having had any bearing upon the findings, and therefore are not disposed to reverse the judgment on account of the ruling of the Court, whether it was right or wrong. We have more difficulty with the next point, which is founded upon the ruling of the Court against the defendant’s right to question Langstaff touching the assignment of stock by the plaintiff to him.

Langstaff seems to have been a very material witness on the part of the plaintiff. He was intimately associated with the plaintiff in matters directly connected with questions of fact involved in the action, and spoke to the main points in issue. Under these circumstances the defendant had a right to test Ms credibility on cross examination by any mode of examination which was calculated to illustrate the attitude and relation of the witness to the parties and the subject matter of the action. Hpon this point, in Jackson v.

Feather River Water Co., 14 Cal. 24, it was very justly said : “We are inclined to agree with the counsel for the appellants, that Courts are apt to take too narrow a view of the rights of the examiner in such cases and to give too extended a scope to the rule that a cross examination is to be confined to the subject matter of the evidence in chief. Undoubtedly the cross examination cannot go beyond the matter; but it ought to be allowed a very free range within it.

In order to do this, the witness may be sifted as to every fact touching the matters as to which he testifies, so that his temper, leanings, relations to the parties and the cause, his intelligence, the accuracy of his memory, his disposition to tell the truth, his means of knowledge, his general and particular acquaintance with the subject matter may be fully tested. Much must be left to the discretion of the counsel upon this subject.” The Court erred in not allowing the defendant’s cross examination to proceed. The Court did not err, however, in denying the defendant’s motion for a nonsuit.

Concede that the money invested in the concern by the plaintiff belonged to his father or his mother, that fact would not make his father or mother, as the case may be, the partner of the defendant. This is an action to wind up a copartnership existing between plaintiff and defendant, under written articles, to which neither the plaintiff’s father nor mother were parties.

Admit that the plaintiff had funds in his hands belonging either to his father or his mother, as their agent or trustee, which he paid into the concern; and .concede, further, that he so used the funds without any authority from them or either of them, the plaintiff is none the less the partner of the defendant, and the real party in interest touching the matters involved in this action.

In a proper case, if the facts assumed are true, the father or mother might follow the funds so converted by the plaintiff into the partnership effects in question, and charge both plaintiff and defendant as trustees; but whether they could or not has nothing to do with this case. Heither the pleadings nor the evidence show whether the transaction with Parkins, whatever it may have been, has ever been closed, and from what appears, the legal presumption is that it has not.

If so, the defendant was not bound to account for the two and a half shares belonging to the plaintiff and withheld by the defendant on account of that transaction.

Doubtless the answer of the defendant is defective in not averring that the transaction with Parkins is still open, but the plaintiff went to trial without taking any objection, and under all the circumstances we think the evidence ought to have shown that the transaction with Parkins had been closed up, in order to sustain the judgment so far as it relates to the two and a half shares held back by the defendant on account of that transaction, but we see no objection to dividing the stock instead of selling it, there being no necessity for a sale of it to raise money to pay debts, unless there is some other reason for a sale which does not thus far appear.

The general rule is to sell, because it is generally considered to be the fairest course to be pursued, but a division in kind may be, under certain circumstances, as fair to all the parties as a sale and division of the proceeds. Where such is the case there can be no objection to a division in kind. (Story on Part. See. 350.) But the decree ought not to be in the alternative; that is to say, it ought not to require the defendant to transfer the stock or pay a sum of money greater than the value of the stock. It should direct the stock to be sold and the proceeds divided, or divided in kind and there stop.

Order denying new trial reversed and new trial granted.