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District Court of Appeal, Second District, Division 1, California.


Civ. 8496.

Decided: March 14, 1935

Shreve, Abbey & Shreve, of San Diego, and D. P. Hatch, of Los Angeles, for appellant. Sullivan, Roche, Johnson & Barry, of San Francisco, for respondent.

On petition for rehearing. In this petition it is suggested that this court, in the opinion filed, made some statements of fact which are “in direct conflict with the record.” Also petitioner suggests extensive additions which he thinks the court should make, in order to have a more complete statement of the evidence. The record of the trial contains about 600 pages. The transactions were numerous, and the court was called upon to unravel a complicated history. As the opinion says, we attempted to give “a recital only of such evidentiary matters as we deem necessary for an understanding of the grounds for our conclusion.”

In attempting thus to draw, from the record, the facts required for a statement of the case, it may be that our judgment was wrong concerning the effect of the evidence in some particulars. For example, we said: “For the $500,000.00 note were pledged subscribers' notes totaling the full amount of $500,000.00, and also,” etc. On page 270 of the transcript there is testimony that there were not any notes put up as collateral with the principal note for that loan. There is evidence of “certificates” belonging to subscribers, which were used as such collateral, in addition to a 3332 share certificate pledged. (Transcript, pp. 250-251 and 137.) Apparently the clause above quoted, containing the statement that “subscribers' notes” were pledged for that loan, is not correct.

We are of the opinion, however, that the facts essential to a proper understanding of the case are substantially those set forth in the opinion, and that even if there be some further defects in the statement, they are not such as would justify a rewriting of the opinion or a change in the decision.

The petition for rehearing is denied.