161 P. 1168 | Cal. Ct. App. | 1916
This is an action for the value of goods, wares, and merchandise alleged to have been sold and delivered *98 by plaintiff's assignors to the defendants Thomas W. Pack, T. O. Toland, and Henry E. Lee at their special instance and request.
The original summons was not served upon the defendant Lee. On February 4, 1913, a default judgment was entered against the defendant Pack. With this judgment as a basis, plaintiff, pursuant to the provisions of section
Upon the issues thus raised the trial court, among other things, and in addition to finding the prior rendition and entry of the judgment against the defendant Pack, found that the plaintiff's assignor had sold and delivered goods, wares, and merchandise of the reasonable value of $953.05 to the defendants Thomas W. Pack and Henry E. Lee, and to each of them, at the special instance and request of each, and that no part of said sum had been paid save the sum of three hundred dollars. From its findings the trial court deduced the conclusion of law that the defendant Lee was bound by the judgment against the defendant Pack to the extent of $653.05 with interest thereon from the first day of March, 1912, in the same manner as though he had been originally served with summons. Judgment was accordingly entered against Lee in the sum of $786.25, from which and an order denying a new trial he has appealed.
Upon the trial of the case the plaintiff presented the testimony of three witnesses — that of the defendant Pack and C. J. and E. J. Teagle, plaintiff's assignors. No evidence was produced and no evidence of any kind offered on behalf of the appealing defendant. The defendant Pack testified, in effect, that he and the defendants Lee and Toland were associated *99 in the ownership of certain placer claims located by them at Searles Borax Lake; that he and they had arranged for the performance of certain assessment work to be done on these claims; that defendants Lee and Toland instructed him to take a party of laborers to the claims to do that work; that the defendant Lee employed one Varney to take these laborers and provisions for them in automobiles to the camp which he, Pack, was to establish on the lake; that he established the camp and bought supplies for several days from the Teagles, plaintiff's assignors; that he requested the Teagles to let Varney have what was needed at the camp; that he later repeated this request at the express direction of the defendant Lee; that subsequently in April, 1912, he, at the defendant Lee's direction, wrote the Teagles promising payment; that Lee, during the spring of 1912, endeavored to raise the money necessary to pay the Teagles for the goods purchased from them; that the defendant Lee never at any time repudiated the bill due the Teagles, but, on the contrary, declared that he would pay the same "as soon as he could get the money." The testimony of the Teagles, which was presented in the form of depositions, established the reasonable value of the merchandise in question to be the sum of $953.05, and the delivery of the same to Varney for use at the camp established by Pack and maintained by all of the defendants for the performance of the assessment work hereinbefore referred to. Their testimony, however, showed that but three hundred dollars had been paid on account, and that their claim against the defendants had been duly assigned to the plaintiff.
The foregoing résumé of the evidence adduced in support of the plaintiff's case is made in response to the contention that the evidence fails to show that the defendants Pack and Lee were jointly indebted to plaintiff's assignor, and that therefore the plaintiff failed to bring his case within the provisions of section
That the defendant Pack was liable for the payment of the indebtedness in suit was established beyond controversy by the judgment previously entered against him; and that the defendants Lee and Pack were principals in the transaction out of which the obligation arose was, we think, sufficiently shown, and therefore the obligation in suit was imposed upon both. Consequently the presumption prevails that the obligation was joint (Civ. Code, sec.
The trial court did not err in its ruling permitting the defendant Pack to testify to conversations with the defendant Lee without first showing that the relation of principal and agent existed between them. The testimony of the defendant Pack contained no suggestion that he was acting as the agent of the defendant Lee in the transaction in suit in any respect save that which may have been implied from the fact that the defendants Toland and Lee were associated with him in the ownership and operation of the placer claims which they had located at Searles Borax Lake. Moreover the joint obligation having been established, the testimony of Pack concerning the conduct and conversations of Lee in connection with the transaction in suit was rightfully received in evidence (Code Civ. Proc., sec. 1870, subd. 5).
The judgment and order denying a new trial are affirmed.
Kerrigan, J., and Richards, J., concurred.
