35 P. 304 | Cal. | 1893
This appeal is from a judgment of nonsuit, rendered in favor of the defendant, the Coronado Beach Company, and was taken within sixty days after the rendition of the judgment. The action was brought to recover $2,152 for goods sold and delivered to Ben S. and Josie A. Miller. The respondent was sued upon the supposition that for a valuable consideration, paid to it by one F. E. Bates, it had promised to pay all the indebtedness of the Millers. Plaintiff claims that the contract is one made expressly for his benefit, upon which he may therefore sue, as provided in section 1559, Civil Code. Ben S. Miller and Josie A. Miller, his wife, had purchased a large amount of land from the Coronado Beach Company, for which they held contracts, the purchase money not having been paid. They had built upon the land purchased a hotel called the “Hotel Josephine.” About January 27, 1888, being unable to pay their indebtedness, they entered into a verbal arrangement with Bates,, who had become liable for a large amount of their indebtedness, by which Bates was to take their property and sell it, and from the proceeds pay their debts. It is a matter of dispute as to whether Bates then undertook and promised to pay all the indebtedness of the Millers. The purchase money due the respondent, for which they held the land as security, was $40,785.41. Bates had previously become responsible for about $1,900 of the Millers’ debts, and they owed about $8,000 more, which are called “floating debts.” The debts sued upon are a part of this floating indebtedness, for which Bates was certainly not liable prior to the arrangement with the Millers, above alluded to; and I think there is no evidence in the ease upon which the court could have found that Bates then assumed such debts. Subsequently to the verbal arrangement it was
It is not claimed that there is any proof of an actual ratification of the agreement made by Babcock and Story, but it is contended that the corporation has received the benefit of the contract, and cannot now repudiate its obligations. The bene, fits alleged to have been received are the $15,000 paid by Bates in cash; the agreement that the land should be sold, and the corporation should have one-half of the surplus; and the statement of Bates that some land had been sold, and the proceeds divided between himself and the Beach Company. • So far as the first is concerned, it seems to have been a mere matter of bookkeeping by Babcock and Story. They charged the money to ■ the corporation, and when it was paid out in discharge of the Miller debts the checks were drawn in the name of the corporation. It is not shown that any stockholder or director ever knew of the transaction, or that the treasurer of the corporation—if there be one—ever had the money. It is presumable that more than that sum was paid to discharge pressing Miller debts, for Bates testified that he made the arrangement with Babcock because he only had $15,000, which was not enough for that purpose. The evidence only shows that Babcock and Story paid the Chadbourne claim, which was a little more than $13,000. It was shown that the property was not sold for enough to pay the Miller debts. It was in fact sold 'to pay the purchase money. As to the statement of Bates that he had sold some land and divided the proceeds, it does not appear when he sold the land. It may have been before the arrangement with Babcock, and the money part of the $15,000. But Bates does not specify how the money was paid or to what agent of respondent he gave it. We are justified in supposing it was simply given to Babcock or Story.
It is not necessary here to hold that a corporation may not so deal with an unauthorized contract as to be held to have become bound by its terms. We are dealing with a case in which no corporate action with reference to the contract is shown, but where it is claimed simply that money paid upon the contract has come into its possession. There is no evidence tending to show that any creditor has been induced to change his position to his injury by reason of supposed assumption of the Miller, debts. Indeed, they would hardly have been justified in doing so, in view of the fact that in the code the right of the parties to the contract to rescind it at any time, at least before it has been acted upon, is expressly recognized. I think the judgment should be affirmed.
We concur: Searls, C.; Vanclief, C.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.