by payment or other satisfaction made by him to his agent in good faith, before receiving notice of the creditor's election to hold him responsible." Assuming that if the moneys paid out by Frew, together with the then unpaid bills incurred by Ferris, had more than exhausted the $10,000 fund, this defense would be sustained, we find that the total amount thus chargeable under the contract was less than $10,000, and that the balance remaining was sufficient to satisfy plaintiff's claims. The sum of $10,179.86, paid out by the defendant and charged against this fund by the defendant, included $1159.30 of items which under the contract were not so chargeable. It is true that in the settlement between Frew and Ferris when said percentage was paid to Ferris, these items were allowed by Ferris. But at the time when plaintiff's assignors furnished the supplies included in their accounts, this modification of the contract was not in force. This being so, their rights are to be determined by the written contract, and they cannot be affected by a subsequent diminution of the amount reserved for the payment of such demands. The total amount of the accounts included in the judgment, exclusive of interest and costs, is only $939.65. The judgment and the order denying a new trial are affirmed. CONREY, P. J. We concur: JAMES, J. Civil No. 1491. Second Appellate District. June 6, 1914. H. ROY STOVEL, Plaintiff and Respondent, v. NORTH LOS ANGELES DEVELOPMENT COMPANY (a Corporation), Defendant and Appellant. [1] PLEADING SERVICE OF AMENDED COMPLAINT STATEMENT OF SERVICE OF COPY-SUFFICIENT AFFIDAVIT.-Proof of the service of an amended complaint by an affidavit reciting the service of a copy of such complaint, instead of reciting the service of the amended complaint by delivering the true copy thereof, is sufficient. Appeal from the Superior Court of Los Angeles County— For Appellant-Hammack & Hammack, For Respondent-Elliott L. Perkins. This is an appeal from a judgment entered by the clerk of the superior court after entry of defendant's default for failure to answer the amended complaint. The defendant had appeared by its attorneys, who filed a demurrer to the original complaint. With respect to the amended complaint the affidavit of service is by plaintiff's attorney and states that he "served a copy of the amended complaint herein on Hammack & Hammack, attorneys for the defendant herein, by delivering to and leaving with said attorneys in the city of Los Angeles, a true copy thereof". [1] This affidavit is sufficient, unless it is deficient in saving that the affiant served a copy of the amended complaint, instead of saying that he served the amended complaint, by delivering the true copy thereof. The briefs do not refer us to any decisions bearing upon this question. We find that section 410, Code of Civil Procedure, says that "a copy of the complaint must be served, with the summons, upon each of the defendants. When the summons is served . . . it must be returned . . with an affidavit . . . of its service, and of the service of a copy of the complaint, where such copy is served". Under this wording of the statute there seems to be no doubt that an affidavit showing that the process-server served "a copy of the complaint", etc., would be sufficient. No good reason appears for holding that the same form of statement may not be made in proving service of an amended complaint. "All pleadings subsequent to the complaint, must be filed with the clerk, and copies thereof served upon the adverse party or his attorney." (Code Civ. Proc., sec. 465.)* The judgment is affirmed. We concur: CONREY, P. J. Civil No. 1444. Second Appellate District. June 9, 1914. A. J. W. ROSS, SARAH A. STAGER, and her husband, W. H. STAGER, Plaintiffs and Respondents, v. CHARLES R. THOMAS, Constable of Los Angeles Township, County of Los Angeles, State of California; H. C. THOMAS and J. H. De La MONTE, Defendants and Appellants. [1] SALE-TRANSFER OF PERSONAL PROPERTY-WHEN PRESUMPTIVELY FRAUDULENT.-Where one having control and possession of personal property transfers the same, such transfer is conclusively presumed to be fraudulent and void as against his creditors, unless accompanied by an immediate delivery and followed by actual and continued change of possession of the thing transferred. [2] ID.-ID.-ID.-CHANGE OF POSSESSION-STATUTORY ESSENTIALS. The change contemplated by the statute must be actual, visible and apparent and such as to give to the public evidence of the claim of the new owner. [3] ID.-ID.-ID.-ID.-WRITING BETWEEN PARTIES-EFFECT OF.— A mere writing, the execution of which is unknown except as between the parties thereto, in the absence of an actual and visible change will not satisfy the statute. [4] ID.-ACTION FOR DAMAGES WRONGFUL ATTACHMENT OF PERSONAL PROPERTY-OWNERSHIP OF PROPERTY-FINDING UNSUPPORTED BY EVIDENCE. It is held in this action to recover damages for the alleged wrongful attachment of personal property that the finding that the transfer made by the debtor to his wife prior to the attachment, was not fraudulent, is not supported by the evidence, which fails to show an actual change of possession. [5] ID. CONDITIONAL CONTRACT OF SALE-CONVERSION OF PROPERTY MEASURE OF DAMAGES OF VENDOR.-The damages of a vendor for the wrongful conversion of personal property in the possession of the purchaser under a conditional contract of sale is measured by section 3336 of the Civil Code. Appeal from the Superior Court of Los Angeles County-Charles Wellborn, Judge. For Appellants-Paul Overton, J. H. Powell, John W. Luter. Action to recover damages for the alleged wrongful attachment of personal property. Judgment went for plaintiffs, from which defendants, adopting the alternative method in bringing up the record, appeal. The complaint alleges that at the time of the alleged wrongful acts defendant Thomas was constable of Los Angeles township and his co-defendants were his official bondsmen; that W. H. and Sarah A. Stager were husband and wife; that on January 29, 1913, plaintiffs Ross and Sarah A. Stager were the owners of certain personal property situated at No. 253 South Main street in the city of Los Angeles, consisting, among other things, of a printing press and outfit, a camera and outfit, and a cash register; that Ross was the owner of the title to the property and that Sarah A. Stager was in possession thereof under a certain written contract made between said Ross of the one part and Sarah A. Stager and W. H. Stager of the other part, whereby the former agreed to sell and the latter agreed to buy the property, including that herein specified, for the sum of $6500, of which amount Stager and his wife had paid the sum of $3250; that on January 22, 1913, W. H. Stager, in consideration of $300, sold and transferred all his interest in the property to his wife, who is now the lawful owner thereof; that on January 29, 1913, defendant Thomas as constable, pursuant to a writ of attachment issued out of the justice's court of Los Angeles township in a certain case wherein W. H. Stager was made defendant, levied upon, took possession of and removed from 253 South Main street the printing press, camera and cash register; that Thomas refused to comply with a demand for its release from attachment; that the value of the property is the sum of $425, in addition to which plaintiffs suffered loss to their business by reason of the taknig and detention of same in the sum of $1000. The answer, among other things, denied the allegation as to ownership of the property; denied that Sarah A. Stager was the owner or holder of a contract for the purchase of the property from Ross, or that she was in possession of the property; denied the sale and transfer thereof as alleged to have been made to Sarah A. Stager by her husband; and as a separate defense, alleged that on January 15, 1913, W. H. Stager. who was then the owner of all the personal property located at 253 South Main street, including that so levied upon, was indebted in the sum of $125 to the Los Angeles Gas & Electric Corporation, which demanded payment of said indebtedness, and upon refusal of said Stager to pay the same, instituted suit for the recovery thereof, and on January 29, 1913, procured the levy of an attachment upon the property as alleged in the complaint; that between the 15th and 29th of January W. H. Stager made a pretended sale and transfer of the property for the purpose of defrauding the attaching creditor; "that said property was at the time of said pretended sale and transfer, and continued thereafter, in the possession and under the control of the said W. H. Stager at the time of said levy and attachment so made by" defendant Thomas, and that it never has been in the possession, control or custody of Sarah A. Stager. The court found all the allegations of the complaint to be true, and the allegations of the separate defense, other than as to the levy of the attachment, untrue. Waiving all question as to the competency thereof, it appears from the evidence that on October 25, 1911, plaintiff Ross was the owner of certain personal property in what was known as a penny arcade, conducted at 253 South Main street, Los Angeles. On said date he executed a conditional contract of sale whereby he sold to W. H. Stager and one F. D. Saffell all of said personal property for the sum of $6500, payable $400 cash and $50 per week, it being provided in said contract that the title to all of the property should remain in Ross until such time as Stager and Saffell had made full payment of the purchase price, and upon the making of which it was agreed that Ross should by bill of sale convey and transfer to them title to the property. Pursuant to this contract Stager and Saffell entered into possession and for sometime conducted the business, when Saffell sold his interest therein to Stager. Sarah A. Stager was not a party to this contract; neither was any assignment thereof ever at any time made to her. She did advance $285 of the $400 cash payment made to Ross, which sum was evidenced by a promissory note of her husband, due one day after date, to secure which he, on February 24, 1912, executed to her a chattel mortgage on the property. From the time of the purchase she was engaged as an employe in the business of which her husband was the head and manager. On January 22, 1913, Stager gave to his wife a bill of sale transferring to her all his interest in the property and business so acquired by him under the contract from Ross and the purchase made from Saffell, in payment of the chattel mortgage and interest thereon; the total of which, as stated in the bill of sale, was $300, and upon the contract so made with Ross he had received the sum of $3250 on account of the purchase price of the property. Included in the contract of purchase from Ross was the property upon which the attachment was levied. [1] Where one having control and possession of personal property transfers the same, such transfer is conclusively presumed to be fraudulent and void as against his creditors, unless accompanied by an immediate delivery and followed by actual and continued change of possession of the thing transferred. (Sec. 3440, Civ. Code.) [2] It has been repeatedly held that the change contemplated by the statute must be actual, visible and apparent and such as to give to the public evidence of the claim of the new owner. [3] A mere writing the execution of which is unknown except as between the parties thereto, in the absence of an actual and visible change, will not satisfy the statute. (George v. Pierce, 123 Cal. 172; McKee, etc. Co. v. Martin, 126 Cal. 557; Guthrie v. Carney, 19 Cal. App. 144.) [4] There is nothing in the record which in the slightest de gree tends to show that anything was done by either Stager or his wife to acquaint the public with the fact that he had transferred the property to her. On the contrary, she testifies that after the execution of the bill of sale each, in so far as concerned the outward apparent relation to the property, occupied the same relative position thereto as they did prior to the transfer. As between themselves, the prior relation, wherein Stager was owner and his wife employe, was reversed, but nothing was done to disclose such change; each continued to perform the same duties and apparently occupied the same relation to the business. There was no actual change of possession, by reason of which fact Sarah A. Stager, as against the attaching creditor of Stager, acquired no interest in or title to the property, the purported transfer thereof being void. The finding that the transfer to her was not fraudulent and that she was the owner and entitled to possession of the property, is not supported by the evidence. [5] Conditional contracts of sale of personal property whereby possession thereof is delivered to the purchaser while the title remains in the vendor, have received full recognition in this state. (Van Allen v. Francis, 123 Cal. 474; Houser, etc. Co. v. Hargrove, 129 Cal. 90; Lundy, etc. Co. v. White, 128 Cal. 170.) By the express terms of the contract the title to the property levied upon, possession of which was delivered to Stager, was retained by Ross, and as to his interest therein, although he had no interest in the business conducted as a penny arcade, the taking of the articles levied upon was as to him a conversion of the property. Section 3336, Civil Code, provides: "The detriment caused by the wrongful conversion of personal property is presumed to be: "1. The value of the property at the time of the conversion, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and "2. A fair compensation for the time and money properly expended in pursuit of the property." Since Ross had no interest in the profits of the penny arcade conducted by Stager and wife, he could not have suffered any damage by reason of loss to the business due to the taking and detention of the property levied upon. Hence, the finding that he was damaged in the sum of $300, due to loss to the business on account of the detention of the property, is not supported by the evidence. As to the interest of Ross the taking of the property was wrongful and he alone is entitled to damages, the measure of which is fixed by section 3336, Civil Code. The judgment is reversed. We concur: CONREY, P. J. JAMES, J. SHAW, J. |