117 Cal. 491 | Cal. | 1897
This action is in form for money had and received. Judgment passed for plaintiffs, and from that judgment and from the order denying a new trial defendants appeal. The facts, concerning which there is little or no dispute, are as follows:
Plaintiffs were partners engaged in the wholesale grocery business in the city and county of San Francisco. Defendants were partners engaged in the
Rosenstein returned to his home. In due course the goods of plaintiffs and defendants were forwarded to him, and he in turn mailed the note to defendants, with a letter of instructions requesting them to pay plaintiffs the $1,000 according to the agreement. Rosenstein, however, had indorsed the note without recourse. Immediately upon its receipt defendants notified Rosenstein that they refuse'll to discount it, or to pay the
Under this state of facts the court held that defendants became liable to plaintiffs in the sum of $1,000, and that the amount unpaid thereof, to wit; the sum of $922.10, was subject to a credit of thirty-five cents on the dollar paid thereon by Rosenstein, and awarded judgment in favor of plaintiffs for the sum of $599.37, with interest.
The agreement between these parties was not a contract between Rosenstein and defendants for the benefit of plaintiffs, bxit was in fact a tripartite agreement under which plaintiffs sold goods to Rosenstein upon his agreement to forward the note to defendants, and defendants’ agreement to discount it, and pay them $1,000 of the proceeds for Rosenstein’s account. The agreement of defendants as principals was as distinctively an agreement with plaintiffs to do this thing as it was an agreement with Rosenstein. In sending the note to defendants with the limited indorsement, it may be conceded that Rosenstein did not fulfill his engagement, and that defendants were entitled to receive the note bearing his general indorsement. This we say may be conceded, though the contract was entirely silent upon the matter. But, in so sending the note, Rosenstein did not violate his agreement. He merely failed fully to perform it. But there was abundant time and opportunity and means at hand for a complete performance, and he did completely perform when in writing he authorized defendants to cancel the limitation and to put him in the position of a genera]
Appellants’ contention that the action, in form money had and received, cannot be maintained upon these facts, is not tenable. At the time when, under the agreement, it became the duty of defendants to discount the note, and pay over of the proceeds $1,000 to plaintiffs, plaintiffs were justified in treating defendants as having in their possession moneys had and received by defendants for their own use. The action, it is true, lies only as to money, or as to some specific article of property agreed to be treated as money; but plaintiffs were justified under the facts in claiming that defendants were holding the $1,000 to their own use. (Kreutz v. Livingston, 15 Cal. 344; Logan v. Talbot, 59 Cal. 652.) And certainly, when defendants in fact discounted the note and applied the moneys to their own account, it is
It is next insisted that defendants should be treated as guarantors of Rosenstein’s indebtedness to the extent of the $1,000, and that Rosenstein, the principal, having been released under the composition agreement, defendants themselves are likewise released. (Civ. Code, sec. 2819.) But, if defendants be treated as guarantors, then they are guarantors who have been indemnified by their principal, for the Dodge note was not only received and discounted by them, but was in fact paid at maturity. Section 2824 of the Civil Code declares that a guarantor who has been indemnified by the principal, is liable to the creditors to the extent of the indemnity, notwithstanding that the creditor, without the consent of the guarantor, may have modified the contract or released the principal.
The judgment and order appealed from are affirmed.
McFarland, J., and Temple, J., concurred.
Hearing in Bank denied.