179 P. 695 | Cal. Ct. App. | 1919
In this appeal, prosecuted by defendant on the judgment-roll, he upon highly technical grounds asks for a reversal of a judgment which, while against him as to Merinda Foster, was, as to the plaintiff Margaret Cullen, in his favor.
The complaint is in two counts, the first alleging that defendant is indebted to plaintiffs in the sum of $1,475 for money had and received by him for their use and benefit, which sum, though demanded of defendant, he refused to pay to plaintiffs. In the second count, the subject of which is the same indebtedness, the transactions and evidentiary facts out of which the indebtedness arose are set out at length. Appellant *626
makes no attack upon the sufficiency of either of these counts in stating a cause of action, but insists that, since it was alleged that defendant was indebted to both plaintiffs, the court could not render judgment for one only. "The rule," says appellant, "is that where two or more persons join as plaintiffs in an action at law, all must recover or none." We do not so understand the law. Indeed, section
The subject of the action was the net proceeds of the sale of a parcel of real estate, which, in the second count, plaintiffs alleged had been by Mrs. Cullen conveyed to Mrs. Foster for the purpose of enabling the latter to effect a sale thereof, the proceeds derived therefrom to be for the use and benefit of the grantor, to whom Mrs. Foster agreed to pay the same. In response to this allegation, the court found that at the time of commencing the action Mrs. Foster was the owner of the property in question, and that on June 19, 1913, defendant, *627
as attorney in fact, and agent of Mrs. Foster, and for her use and benefit, sold the same. Appellant's complaint as to this finding is that it is inconsistent with the plaintiffs' allegation, and hence error. We do not think so; but, conceding so much, defendant was not prejudiced by reason thereof. As shown by the record, he wrongfully obtained and appropriated to his own use money derived from the sale of a parcel of real estate, made under a power of attorney given him by Mrs. Foster, in which property she alleged her mother, Mrs. Cullen, had a beneficial interest. The effect of the finding was that, regardless of the capacity in which Mrs. Foster held the title, she was, for the purpose of obtaining redress for defendant's wrong, the legal owner thereof, and, hence, the court adjudged that the defendant pay the proceeds so wrongfully withheld to Mrs. Foster, to whom his obligation was due. Whether she responded to the one for whom she claimed to be trustee was a question with which he was in no wise concerned. In our opinion, the provisions of section
The judgment is affirmed.
Conrey, P. J., and James, J., concurred.
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 3, 1919.
Angellotti, C. J., Shaw, J., Melvin, J., Lawlor, J., Wilbur J., and Lennon, J., concurred. *628