180 P. 12 | Cal. Ct. App. | 1919
In this action plaintiff, as successor in interest of American Midway Oil Company, seeks to recover of defendant the sum of five thousand dollars. The facts upon which this claim is based are substantially as follows: On or about July 11, 1911, one A. L. Kemper, the secretary of the American Midway Oil Company at Los Angeles, appropriated a check for five thousand dollars, made and forwarded by the Esperanza Consolidated Oil Company at its office in San Francisco to said American Midway Oil Company — and which will be referred to hereinafter as plaintiff — at Los Angeles. Such check was drawn to the order of the plaintiff. It was sent by mail inclosed in an envelope addressed to plaintiff. A. L. Kemper, in the office of plaintiff, opened the letter, extracted the check, and by the use of a rubber stamp indorsed upon the back of such check the words: "American Midway Oil Company __________ Sec'y." In the space following the word " 'Company" Kemper wrote his own name, and thereunder indorsed the words "A. L. Kemper, Secretary." He deposited the check, thus indorsed, with the defendant, and the said defendant entered same to Kemper's account, as by him instructed. On the 18th of July, 1911, Kemper withdrew one thousand eight hundred dollars, and on the 31st of the same month three hundred dollars more, of the proceeds of said five thousand dollar check collected by the defendant bank by check so drawn upon the defendant, and signed as aforesaid. This money was appropriated by Kemper to his own use. The balance of the five thousand dollars is still retained by defendant. The defendant contends that Kemper was secretary and general manager of said plaintiff from September, 1910, to September 30, 1911, and that the said sum of two thousand one hundred dollars so drawn by Kemper was due him as salary as such secretary and general manager. Plaintiff did not discover the loss of the five thousand dollar check until the latter part of August, 1911, whereupon demand was made upon defendant for the proceeds thereof. On October 3, 1911, two checks, one for four thousand dollars and one for one thousand dollars, *712 were drawn against said fund in defendant's bank by plaintiff, and upon payment being refused, such checks were duly protested. Thereupon plaintiff brought this suit. Judgment went for plaintiff for five thousand dollars, with interest and costs, from which, and from an order denying its motion for a new trial, defendant appeals.
The complaint declared specifically upon the contention aforesaid, and in four separate causes of action asserted claim for money had and received by and for money loaned to defendant for plaintiff's use. The answer, and the several amendments thereto, after admitting the receipt of the proceeds of said check, in substance interposed the following defenses to plaintiff's said causes of action: (1) That the check in question was not deposited with defendant, nor were any moneys received thereon at the time said check was deposited the property of plaintiff; but that prior to the receipt of such check by defendant it had been indorsed in blank by plaintiff, and thereafter, and prior to such receipt, became the property of A. L. Kemper, secretary; that defendant made collection of said check for the account of said Kemper, and, as already hereinbefore set forth, placed said sum to the credit of such account. (2) That plaintiff is estopped from bringing its action. Subsequent to the trial and prior to judgment, and to comply with the proof and theory of the case, plaintiff, by leave of the court, filed the following amendment to the complaint: "The plaintiff, by leave of the court, first had and obtained, amends its complaint filed herein in the following respects: By striking out all of paragraph V of the first cause of action in said complaint contained, and inserting in lieu thereof the following: 'That thereafter and on or about the twelfth day of July, 1911, said check of five thousand dollars was removed from the office of the plaintiff, in the city of Los Angeles, by A. L. Kemper, secretly and without the knowledge, consent, or authority of plaintiff, and was by said A. L. Kemper, without the knowledge, consent, or authority of this plaintiff, indorsed as follows: "American Midway Oil Company, A. L. Kemper, Sec'y." That thereafter and on or about said twelfth day of July, 1911, said Kemper secretly, and without the knowledge, consent, or authority of this plaintiff, delivered said check to the defendant. That the defendant paid no money or other consideration for said check, or the proceeds *713 represented thereby, and parted with nothing of value therefor. That subsequently and prior to the first day of August, 1911, there was paid to said defendant by the payee bank in said check named, to and for the use of the plaintiff, the sum of five thousand dollars, represented by said check.' " The court found against the defendant upon the material issues. Defendant, by certain specifications, attacks many of said findings as being without sufficient evidence to support them.
From a careful perusal and consideration of the evidence before us we are of the opinion that the record contains evidence tending to prove every issue. There was conflict in the evidence, and we will not disturb the findings of the trial court upon such testimony. (Porter v. Johnson,
Viewing this case in the light of all the evidence and surrounding circumstances, it is clear that Kemper had no authority, express or implied, to sign said check; nor did he have any authority by virtue of his office as secretary. (Palo Alto etc. Assn. v. First Nat. Bank,
The language of the court in the case of Fresno Canal etc.Co. v. Rowell,
For the reasons above stated, and many others that occur to us not necessary to mention, we are of the opinion that the evidence amply supports the findings complained of by appellant here. No other point in the record before us merits attention.
Judgment and order affirmed.
Finlayson, P. J., and Sloane, J., concurred. *717
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 14, 1919.
All the Justices concurred.