DE VRIES v. James J. Brumback, Defendant and Appellant.*

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

Paul DE VRIES, Plaintiff and Respondent, v. Frank MENDES et al., Defendants, James J. Brumback, Defendant and Appellant.*

Civ. 18311.

Decided: September 14, 1959

Leo R. Friedman, San Francisco, for appellant. Lloyd M. Tweedt, Derby, Cook, Quinby & Tweedt, San Francisco, for respondent.

On February 18, 1955, defendant Frank Mendes and others robbed plaintiff's assignor, a San Francisco jewelry firm, obtaining money, precious stones, and jewelry, of the reasonable value of $118,195.

On April 17, 1958, plaintiff recovered judgment against Mendes and defendant, James J. Brumback, in the sum of $21,947.13, based upon the alleged conversion of that portion of the property taken in the robbery which was not subsequently recovered. From such judgment the defendant Brumback alone has appealed.

The appeal comes before us upon the clerk's transcript which includes the judgment roll and the written opinion of the trial court. The appeal is based solely ‘upon the proposition that the judgment is not supported by and is contrary to the findings * * *.’ Respondent's complaint contained three counts. The first was for money had and received and for property delivered to defendants at their express request on February 18, 1955. Count two alleged the forcible taking of diamonds, pearls, gems, and cash on February 18, 1955. The third count was for a balance due on a book account for materials or money delivered to defendants.

In response to the issues tendered by the first count, the trial court made findings to the effect that ‘On or about the 18th day of February, 1955, defendants James J. Brumback and Frank Mendes, and each of them, became indebted to Paul de Vries, Inc. for money had and received and for property delivered to said defendants at their express request in the amount of $21,947.13.’ In response to the issues tendered by the second count, the court made findings with reference to the specific facts surrounding the alleged conversion. (These findings are hereinafter set forth.)

Respondent urges that the findings on the first count alone are sufficient to support the judgment, and on the basis of such findings alone the judgment must be affirmed. We do not agree. Defendant Brumback demanded a bill of particulars setting forth ‘the items of the account and claim about which each of the first, second and third causes of action of plaintiff's complaint [were] based; the date when each item [was] claimed to have arisen and the circumstances thereof.’ Plaintiff responded by furnishing a bill of particulars stating: ‘Pursuant to your demand for a bill of particulars, the items of the account and claim and acquisition of said items by defendant from plaintiff and plaintiff's assignors on February 18, 1955, are as follows.’ (Emphasis added.) (Here follows a list of diamonds, jewelry, etc.) The demand for the bill of particulars went to each count and the bill of particulars furnished was as to each count of the complaint. The record before us makes it adequately clear that the plaintiff had but a single claim against defendants which he chose to state in three separate counts or causes of action. It is also clear that plaintiff's right to recover under the general counts (the first and third) depended upon the allegations and proof of the specific count (the second). Under such circumstances the complaint is to be considered as a whole (South v. Wishard, 123 Cal.App.2d 642, 267 P.2d 827) and as stating but one cause of action. Powers v. Freeland, 114 Cal.App. 146, 299 P. 736; Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 110 P.2d 396. The findings also are to be considered as a whole (Zeibak v. Nasser, 12 Cal.2d 1, 82 P.2d 375; Costello v. Bowen, 80 Cal.App.2d 621, 182 P.2d 615), and the specific findings must be held to control the general. Hammond Lumber Co. v. Barth Inv. Corp., 202 Cal. 606, 262 P. 31; Breakers Holding Co. v. Josebra Co., 122 Cal.App.2d 741, 265 P.2d 938; Wilson v. Wilson, 76 Cal.App.2d 119, 172 P.2d 568.

If the judgment in question is to be sustained it must find its support in the specific findings of fact which read as follows:

‘V. On the 18th day of February, 1955, Paul de Vries, Inc., a jewelry firm, owned and had in its possession at its offices and salesrooms in San Francisco, California, money in the amount of $195.00, and certain stock in trade consisting of jewelry, diamonds and other precious stones; said stock in trade then and there had a reasonable value of about $112,000.00.

‘VI. On February 18, 1955, defendant Frank Mendes and others armed with dangerous weapons robbed said Paul de Vries, Inc. and certain persons employed therein, of money and said entire stock in trade; that prior to said date, defendant Frank Mendes, one Steve Sorrentino and others conspired and agreed with one Edward Bigarani that said Frank Mendes, Steve Sorrentino and others should rob said Paul de Vries, Inc. and that said Edward Bigarani should receive the stolen property from said robbers; that said robbery was committed pursuant to said conspiracy and the robbers delivered the greater part of said stolen property to said Edward Bigarani shortly after the robbery had been committed; that defendant James J. Brumback was not a party to and did not participate in said conspiracy prior to or during said robbery. (Emphasis added.)

‘VII. On February 18, 1955, within a few hours after said robbery, defendant James J. brumback proceeded to the hotel room of said Edward Bigarani in San Francisco, California, and then and there saw the greater part of said stolen property in the presence of said Edward Bigarani and defendant Frank Mendes; that defendant James J. Brumback was then and there made aware of said conspiracy insofar as it involved said Mendes as robber and said Bigarani as receiver; that with said knowledge, defendant James J. Brumback joined, ratified and participated in said conspiracy; that the general purpose of said conspirators was to convert all of the property stolen in said robbery to their own use and benefit and said conspiracy and its purpose had not terminated at the time said James J. Brumback joined, ratified and participated in said conspiracy. Said defendant James J. Brumback thereupon took the greater part of said stolen property into his possession and custody. (Emphasis added.)

‘VIII. The greater part of the stolen property was recovered from said conspirators. Money in the amount of $175.00 taken in said robbery was not recovered; jewelry, diamonds and other precious stones, as itemized on plaintiff's Exhibit Number 3 in evidence herein, taken in said robbery, were not recovered; the value of said unrecovered items set forth in said exhibit was the sum of $21,772.13 at the time of said robbery; that by reason of the premises plaintiff's assignor has been damaged in the total sum of $21,947.13.’ (Emphasis added.)

In reviewing these findings to ascertain whether or not they support the judgment, we must bear in mind that by the 1951 amendment to the Rules on Appeal all of the presumptions in support of a judgment which existed prior to the adoption of the new rules were restored except as expressly limited by the provisions of Rule 52, as amended. White v. Jones, 136 Cal.App.2d 567, 288 P.2d 913. Thus in a case such as this where the appeal is on the clerk's transcript and the judgment roll alone ‘the findings are to receive such a construction as will uphold rather than defeat the judgment, and wherever, from the facts found, other facts may be inferred which will support the judgment, such inference will be deemed to have been [drawn].’ Purdy v. Purdy, 1956, 138 Cal.App.2d 402, 404, 291 P.2d 1005, 1007; Goldberg v. List, 11 Cal.2d 389, 79 P.2d 1087, 116 A.L.R. 900; Finney v. Lockhart, 35 Cal.2d 161, 164, 217 P.2d 19; compare Alkus v. Johnson-Pacific Co., 80 Cal.App.2d 1, 181 P.2d 72, and Borges Dusters, Inc. v. Southmost Aviation, 152 Cal.App.2d 25, 312 P.2d 712.

Appellant's entire appeal is based upon the premise that he was held liable for property over which he at no time exercised any dominion and which was never in his possession. This argument appears to be based upon the assumption that the ‘greater part’ of the stolen property referred to in the last sentence of paragraph VII of the findings and the ‘greater part’ of the stolen property referred to in the first sentence of paragraph VIII of said findings, refer to identical items. (Emphasis added.)

Assuming for the sake of argument that the findings may be subject to such construction, it must be conceded that such an inference does not necessarily flow from the language used. By referring to Exhibit No. 3 in evidence, paragraph VIII of the findings describes in detail the unrecovered items. Nowhere is there a finding that these items were never under the control or in the possession of defendant Brumback. Under such circumstances, if the interpretation contended for by appellant causes the findings to become inconsistent with the judgment, such interpretation must be rejected, since the actual evidence upon which the findings are based is not before us. In the absence of the evidence a finding which may possibly be construed as consistent or inconsistent with the other findings or the judgment cannot constitute grounds for a reversal of the judgment. 3 Cal.Jur.2d 824; Machado v. Kinney, 135 Cal. 354, 67 P. 331; McAulay v. Jones, 110 Cal.App.2d 302, 242 P.2d 650; Warburton v. Kieferle, 135 Cal.App.2d 278, 287 P.2d 1; Borges Dusters, Inc. v. Southmost Aviation, 152 Cal.App.2d 25, 312 P.2d 712.

Included in the record before us is the opinion of the trial judge. (Such inclusion is now authorized by Rule 5(a), Rules on Appeal.) Although such opinion cannot be invoked to contradict the findings or judgment in any case (Oldis v. La Societe Francaise, etc., 130 Cal.App.2d 461, 279 P.2d 184) it may be used as an aid in the interpretation of an uncertain decision or the discovery of the general grounds thereof, either for the purpose of sustaining or reversing it. Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 47 P.2d 273; Coakley v. Ajuria, 209 Cal. 745, 290 P. 33; Trans-Oceanic Oil Corp. v. City of Santa Barbara, 85 Cal.App.2d 776, 194 P.2d 148; Silvers v. Wesson, 122 Cal.App.2d 902, 266 P.2d 169.

The learned trial judge in his opinion said: ‘The possibilities as to the missing jewelry are these, as I see them: 1. that the robbers, with or without Bigarani, or Bigarani alone, without Brumback's knowledge, disposed of the jewelry before the hotel meeting. 2. that there was an accidental loss while it was in their hands, before Brumback came on the scene. 3. that there was a division of the loot at the hotel, Brumback participating, and that the missing jewelry went to Mendes or Bigarani. 4. that Brumback got possession of it, and did not deposit it in the safe deposit box. 5. that it was lost, or purloined, by someone after the opening of the safe deposit box—a possibility argued by counsel, considering the number of people who were gathered to see it. * * * But the very fact that it is impossible to tell what really happened is good reason for holding each conspirator for the acts of all, no matter which of the 5 was the actuality.’ In view of the foregoing language it it our considered judgment that the interpretation of the findings urged by appellant is not warranted. The most that can be said is that the trial court failed to make a definite finding as to whether or not the missing property was ever in the possession of defendant Brumback because it considered such fact immaterial. ‘It is incumbent on an appellant to produce the evidence that was presented in the trial court in order that the appellate court may determine whether any error was committed in failing to make findings. In other words, the court's failure to find on an issue cannot be considered as error unless it appears from the record that evidence as to such issue was offered. ‘To obtain a different decision on appeal, not only must it be shown by the record that evidence was submitted as to an issue on which a finding would invalidate a judgment otherwise fully supported by the findings, but the evidence must be such that it required the trial court to make a finding which would countervail its other findings.’ 3 Cal.Jur.2d 825; Citizens Nat. Trust & Savings Bank v. Maher, 6 Cal.2d 386, 57 P.2d 917; Hawes v. Clark, 84 Cal. 272, 24 P. 116; Marchant v. Hayes, 117 Cal. 669, 49 P. 840; Klokke v. Escailler, 124 Cal. 297, 56 P. 1113; People v. McCue, 150 Cal. 195, 88 P. 899; Delanoy v. Delanoy, 216 Cal. 23, 13 P.2d 513; Brown v. Republic Productions, Inc., 26 Cal.2d 867, 161 P.2d 796; Himmelman v. Henry, 84 Cal. 104, 23 P. 1098; Winslow v. Gohransen, 88 Cal. 450, 26 P. 504; Giletti v. Saracco, 110 Cal. 428, 42 P. 918; Kaiser v. Dalto, 140 Cal. 167, 73 P. 828; Machado v. Kinney, 135 Cal. 354, 67 P. 331.

The apparent assumption of the trial court, that whether or not the missing property was ever in the physical possession of defendant Brumback was immaterial, we believe was entirely sound.

The action is one to recover damages based upon the alleged conversion of goods taken in a robbery. ‘Conversion has been defined as an act of wilful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession.’ Prosser on Torts (2d Ed.1955), p. 66.

Conversion is a continuing tort, it continues as long as the person entitled thereto is deprived of the use and possession of his property. It does not necessarily end as appellant contends when the original wrongdoer transfers physical possession to another. Likewise a conspiracy to convert is a continuing thing lasting so long as the agreement to assert dominion over the goods, as against the owner, goes on. The question as to when the design is accomplished and abandoned is one depending on the facts and circumstances of each case and the nature and purpose of the conspiracy, and such a question is one of fact. 11 Cal.Jur.2d 223–224.

The case was tried upon the theory of conspiracy and the trial court specifically found ‘that the general purpose of said conspirators was to convert all of the property stolen in said robbery to their own use and benefit and said conspiracy and its purpose had not terminated at the time said James J. Brumback joined, ratified and participated in said conspiracy.’ (Emphasis added.) As to Brumback's active participation, the court found that he ‘took the greater part of said stolen property into his possession and custody.’ Such act certainly was in furtherance of the general objects of the conspirator to assert deminion over the property as against the owner, and to convert it to their own use and benefit, i. e., to cash. Appellant argues that ‘every conspiracy to rob carries with it the intent to convert the stolen property. Thus the original conspiracy of Mendes, and Bigarani to rob was also a conspiracy to convert and as Brumback was expressly found to be no part of this conspiracy,’ this negatives the finding that there was but one conspiracy to convert. Under the well established rules of judicial review heretofore cited, such construction of the findings must of course be rejected. Since the appeal is upon the judgment roll alone we must assume that ample evidence was received which would support the findings of a continuing conspiracy to convert and that defendant joined the same before its termination. ‘The rule stated in Corpus Juris, which has been quoted and cited with approval, is that, to render a person civilly liable for injuries resulting from a conspiracy of which he was a member, it is not necessary that he should have joined the conspiracy at the time of its inception; everyone who enters into such a common design is in law a party to every act previously or subsequently done by any of the others in pursuance of it.’ 15 C.J.S. Conspiracy, § 19, p. 1030. Having joined the single continuing conspiracy to convert, defendant Brumback became civilly liable for the previous acts of the other conspirators under the rules relating to civil liability, and the fact that some of the missing goods at no time came into his possession (if indeed such be the fact) would not absolve him from liability therefor. Wells v. Lloyd, 6 Cal.2d 70, 56 P.2d 517; Smith v. Blodget, 187 Cal. 235, 201 P. 584; Revert v. Hesse, 184 Cal. 295, 193 P. 943; Lomita Land & Water Co. v. Robinson, 154 Cal. 36, 97 P. 10, 18 L.R.A., N.S., 1106; Peterson v. Cruickshank, 144 Cal.App.2d 148, 300 P.2d 915; Barkett v. Brucato, 122 Cal.App.2d 264, 264 P.2d 978; State of California v. Day, 76 Cal.App.2d 536, 173 P.2d 399; Franck v. Moran, 36 Cal.App. 32, 171 P. 841; from other jurisdictions see: Ellis v. Colorado Nat. Bank, 84 Colo. 266, 269 P. 997; Eyak River Packing Co. v. Huglen, 143 Wash. 229, 255 P. 123, 257 P. 638; Kennish v. Safford & Ray, 193 Mo.App. 362, 184 S.W. 923; Hall's Adm'r v. Hall, 285 Ky. 730, 149 S.W.2d 24; Peoples Loan Co. v. Allen, 199 Ga. 537, 34 S.E.2d 811; Aughey v. Windrem, 137 Iowa 315, 114 N.W. 1047; Baker v. State Bank of Akron, 112 Ind.App. 612, 44 N.E.2d 257; Hutson v. Imperial Royalties Co., 135 Kan. 718, 13 P.2d 298; Lehigh Structural Steel Co. v. Atlantic Smelting & Refining Works, 92 N.J.Eq. 131, 111 A. 376; Rosco Trading Co. v. Goldenberg, Sup., 182 N.Y.S. 711; Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783; Wolfgram v. Dill, 40 S.D. 98, 166 N.W. 309; Patch Mfg. Co. v. Protection Lodge, 77 Vt. 294, 60 A. 74; Lyle v. Haskins, 24 Wash.2d 883, 168 P.2d 797; Lesnik v. Public Industrials Corporation, 2 Cir., 144 F.2d 968; United States ex rel. Marcus v. Hess, D.C., 41 F.Supp. 197.

In Peterson v. Cruickshank, 144 Cal.App.2d 148, 300 P.2d 915, an action for false imprisonment, plaintiff secured a joint judgment against three defendants. Cruickshank, one of the defendants, contended that he could not be held jointly liable unless he conspired with the other defendants to imprison the plaintiff prior to or at the time of the imprisonment. The evidence showed that Cruickshank paid the doctor and hospital bills at the end of the unlawful confinement. In upholding the joint verdict the court said, at page 165 of 144 Cal.App.2d, at page 926 of 300 P.2d: ‘Appellant seems to be laboring under the impression that for respondent to prevail there must be evidence that on October 23rd, when respondent was taken to the sanitarium, there was a conspiracy between appellant and the sanitarium, and Dr. Francis to send her to the sanitarium. That is not the law. A conspirator who participates or cooperates unlawfully with other conspirators at any time during the conspiracy thereupon makes himself liable as a conspirator.’

In State of California v. Day. 76 Cal.App.2d 536, 173 P.2d 399, suit was brought to recover funds of the State Compensation Insurance Fund misapplied or converted by means of a conspiracy formed on or about February 6, 1936. Day was a member of the conspiracy from its inception and secured payments totaling $1,209.02 to one Resau in 1936. Bucher joined the conspiracy in January 1937, and assisted in securing payments of $6,962.56, to Resau in 1937. The trial court held Day liable for the principal amount of $8,171.58, but held Bucher liable for only $6,962.56 (although the judgment was joint). At first blush this case might appear to support appellant's contention herein, however, at page 551, of 76 Cal.App.2d, at page 408 of 173 P.2d the court said: ‘Bucher, found to be a conspirator, and found to have been a participant in a wrongful act, is, in the eyes of the law, equally liable with Day for the wrong perpetrated, though he may not have known the details of the scheme from its inception. They were joint tort-feasors and liable equally for the full amount of damages. Day did not appeal from the judgment and it has become final as to him. Respondents have not appealed from the judgment and, therefore, are not in a position to urge the point that as joint tort-feasors Bucher's liability should be the same as Day's. The amount assessed against Bucher, in the absence of an appeal by the respondents, must stand.’

In Union Terminal Warehouse Co. v. Roberti, 86 Cal.App. 636, 261 P. 324, relied upon by appellant, a thief stole 26 bales of cotton and sold 22 bales to defendants. Union sued for the value of 26 bales but was allowed recovery for only 22. The case is not in point because no conspiracy between the thief and the buyer was either charged or proven.

Rozenberg v. Sund, 81 Ga.App. 856, 60 S.E.2d 390, and Wilson Cypress Co., v. Logan, 120 Fla. 124 162 So. 489, likewise do not assist appellant since each case involved purchasers in good faith. The latter case does, however, state a rule of joint liability similar to that heretofore discussed and which is applicable to appellant.

People v. Viets, 79 Cal.App. 576, 250 P. 588, and Garcia v. People, 88 Colo. 267, 295 P. 491, also relied upon by appellant, being criminal cases are not relevant because as we shall hereinafter point out the substantive law of conspiracy in criminal and civil cases is not the same.

Appellant's major contention is based upon the premise that the law in this state with reference to civil liability based upon the theory of conspiracy has been entirely altered by the recent decision in People v. Weiss, 1958, 50 Cal.2d 535, 327 P.2d 527. In Weiss it was held that a person who joins a conspiracy after its formation and actively participates in it may not be convicted of a substantive offense committed by any of the other conspirators prior to the time he joined the conspiracy; that one joining a conspiracy adopts the prior acts of his fellow conspirators only in the sense that evidence thereof is admissible against him to show the nature and objectives of the conspiracy which he joins and the incidents thereof but not to prove his guilt of substantive crimes theretofore committed.

‘[T]he substantive law of conspiracy [argues appellant] remains the same in both civil and criminal cases' and for this reason he cannot be held civilly liable as a joint feasor for all of the unrecovered property but only for such specific items as have been proven to have come into his actual possession. We do not agree. In the first place the decision in Weiss1 makes no mention of a defendant's civil liability, See Code Civ.Proc. § 32. Secondly, the substantive law of conspiracy as a crime and conspiracy as a tort differs materially. The gist of the crime of conspiracy is the agreement to commit the unlawful act (People v. Corica, 55 Cal.App.2d 130, 134–135, 130 P.2d 164; 11 Cal.Jur.2d 231), while the gist of the tort is the damage resulting to the plaintiff from an overt act or acts done pursuant to the common design. Herron v. Hughes, 25 Cal. 555; 11 Cal.Jur.2d 273. ‘The fact that the conspiracy is the essence of the crime, while the damage is the essence of the tort, must make a great deal of difference in the rules applicable.’ Holdsworth, History of English Law, Vol. VIII, p. 393. In tort ‘the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tort-feasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.’ Mox, Incorporated v. Woods, 202 Cal. 675, 678, 262 P. 302, 303. ‘The original meaning of a ‘joint tort’ was that of vicarious liability for concerted action. All persons who acted in concert to commit a trespass, in pursuance of a common design, were held liable for the entire result. In such a case there was a common purpose, with mutual aid in carrying it out; in short, there was a joint enterprise, so that ‘all coming to do an unlawful act, and of one party, the act of one is the act of all of the same party being present’ (Sir John Heydon's Case, 1613, 11 Co.Rep. 5). Each was therefore liable for the entire damage done, although one might have battered the plaintiff, while another imprisoned him, and a third stole his silver buttons. All might be joined as defendants in the same action at law, and since each was liable for all, the jury would not be permitted to apportion the damages. The rule was the same at criminal law.' Prosser on Torts (2d Ed.1955), p. 234.

In this state however the substantive law of criminal conspiracy has been materially restricted by statute.2 The civil law of conspiracy on the other hand has been ‘somewhat extended beyond its original scope’ so that ‘[a]ll those who actively participate in a tortious act, by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him.’ Prosser on Torts (2d Ed. 1955), p. 234–235. (Emphasis added.)

One of the major distinctions between the substantive law of conspiracy as a crime and as a tort relates to the matter of ratification. In criminal law a conspirator cannot ratify a prior criminal act so as to become subject to prosectution for the offense embraced within such act. This restriction finds statutory expression in Penal Code, section 31. See People v. Weiss, 1958, 50 Cal.2d 535, 564, 327 P.2d 527. The provisions of the Penal Code however have no application to civil actions. Code of Civ.Proc. § 32. The authority for vicarious liability in tort for prior criminal acts is to be found in the law of partnership and agency.

A conspiracy has been aptly defined as a ‘criminal partnership.’ Fricke, Criminal Law (6th Ed. 1956), p. 109; see also People v. Flanagan, 65 Cal.App. 268, 274, 223 P. 1014; United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168. A partner occupies at one and the same time the relation of principal and agent toward his copartners. Wittenbrock v. Parker, 102 Cal. 93, 36 P. 374, 24 L.R.A. 197; Keyes v. Nims, 43 Cal.App. 1, 184 P. 695. The Uniform Partnership Act provides generally that the law of agency shall apply thereunder. Corp.Code, § 15004, subd. 3. ‘Every partner is an agent of the partnership for the purpose of its business * * *.’ Corp.Code, § 15009. ‘An agency may be created * * * by a precedent authorization or a subsequent ratification.’ Civ.Code, § 2307. (Emphasis added.)

It has long been recognized that a principal may ratify a wrongful act, or even a criminal act of his agent and thereby become civilly liable for such previously unauthorized act. Avakian v. Noble, 121 Cal. 216, 53 P. 559 (conversion of raisins); Sullivan v. People's Ice Corp., 92 Cal.App. 740, 268 P. 934 (assault and battery); Jameson v. Gavett, 22 Cal.App.2d 646, 71 P.2d 937 (assault and battery); Volandri v. Hlobil, 170 Cal.App.2d 656, 339 P.2d 218 (forgery). In Sullivan v. People's Ice Corp., 92 Cal.App. 740, 745, 268 P. 934, 936, the court said, ‘Defendant avers that the act of Dupzyk was a crime and that a crime could not be legally authorized, and therefore it could not be ‘ratified.’ If this were an action sounding in contract between principal and employer, the argument would have much weight. [Citation.] But it is an action in tort brought by a third party. Our statute says it can be ‘ratified.’ Civ.Code § 2339.'

A principal does not, of course, upon ratification become criminally liable for a substantive crime of his agent previously unauthorized, because such ratification does not fall within the purview of section 31 of the Penal Code.

In conclusion, we should also point out that appellant, in effect, concedes that he ratified the conversion so far as the property which came into his actual possession is concerned. In view of the provisions of Civil Code, section 2311, he is thus unwittingly saying that such ratification extended to all of the property taken in the robbery. For section 2311 provides that a ‘[r]atification of part of an indivisible transaction is a ratification of the whole.’ The transaction here was the conversion of all the goods taken in the robbery; the transaction is not divisible—there was but a single robbery and because of the conspiracy to convert and appellant's ratification and active participation, but a single conversion.

For all of the foregoing reasons the judgment is affirmed.

FOOTNOTES

1.  In People v. Weiss, 50 Cal.2d 535, 327 P.2d 527, our Supreme Court in a footnote at page 565, of 50 Cal.2d, at page 545 of 327 P.2d refers to the case of State v. Duncan, 1876, 64 Mo. 262 (the horse thief case), as laying down the proper rule of criminal responsibility. The Missouri court is there quoted as follows: ‘In other words, if the defendant joined a company of horse thieves, he was liable for all the thefts they or any of them may have committed before he became a member, whether he received any part of the property so stolen, or its proceeds or not; his joining the company had relation back, and implicated him in every theft they had committed even years before. The statement of the proposition is its own refutation.’ However, in Kennish v. Safford & Ray, 1916, 193 Mo.App. 362, 184 S.W. 923, H and S conspired to defraud K by securing a loan of $3,650 based on worthless collateral. H got $750 of the money and S received $2,900. Subsequently R joined the conspiracy and received part of the $2,900. R contended that he should be held liable only for the money he actually received, he was, however, held jointly liable for the full amount, the court stating at page 372 of 193 Mo.App., at page 926 of 184 S.W.: ‘If a conspiracy exists, a party who joins at any stage of the operation becomes a party to, and answerable for, all acts done by each and all of the conspirators before or afterwards in furtherance of the common design.’ Thus, while the rule clarified by our Supreme Court in Weiss was recognized and applied in Missouri as early as 1876 in a criminal case, a different rule was applied forty years later on a civil case. The conclusion seems inescapable, that the Missouri Court recognizes a clear distinction in the substantive law of conspiracy between criminal and civil cases.

2.  ‘Neither conspiracy, as it was known to the common law, nor as it is known today, according to its usual acceptation, is a crime in California.’ People v. Talbott, 65 Cal.App.2d 654, 661, 151 P.2d 317, 320. ‘No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.’ Pen.Code, § 184. ‘Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence.’ Pen.Code, § 1104.

WAGLER, Justice pro tem.

BRAY, P. J., and TOBRINER, J., concur.

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