Keller v. Hicks

22 Cal. 457 | Cal. | 1863

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to recover the amount of certain county warrants or orders drawn by the County Auditor upon the County Treasurer of Yuba County in favor of W. F. Hicks & Co. The complaint avers that the defendants, Hicks, Magruder, Addington, and Mrs. Laird (now Mrs. Carr), were partners, under the name of W. F. Hicks & Co., and as such printed the delinquent tax list of Yuba County for the year 1858; that two warrants, or orders, were issued to them therefor, the following being a copy of one of them:

“ Marysville, December 24th, 1858.

“ Warrant Wo. 712.—To the Treasurer of Yuba County : Pay to W. F. Hicks & Co., or order, the sum of nine hundred and sixty-five dollars for services as County Printer.

“ Yuba County Treasury Warrant for $965.

“ W. H. Wickersham, County Auditor.”

That January 2d, 1859, Hicks & Co., for a good and valuable consideration paid them by the defendant Eelton, indorsed and delivered the warrants to him; that Felton, on the twelfth day of January, 1859, sold and delivered the warrants to the plaintiff for the sum of nine hundred and sixty-five dollars, paid him by one Smith, out of plaintiff’s money; that the warrants were not paid, and he commenced an action against the County Treasurer to compel their payment, and upon appeal to this Court it was decided that the warrants were illegally drawn and therefore void (Keller v. Hyde, 20 Cal. 593), and that judgment was accordingly rendered against him on the first day of September, 1862, which was the first knowledge he had of the facts on which the invalidity of the warrants was founded, and of the fraud perpetrated upon him; that the defendants represented to him that they were just and valid claims against the county, upon which representation he purchased the warrants and paid Felton the sum of nine hundred and sixty-five dollars; that he has demanded payment of the defendants which they have refused. Then follows a count in which the warrants are counted on similar to promissory notes or bills of exchange under the old forms, followed by a count in assumpsit for nine hundred and sixty-five dollars, for money had and received, the promise in which is laid as of January 12th, 1858.

To this complaint Felton filed his separate demurrer, and the other defendants a joint demurrer, upon the following grounds: 1st, misjoinder of defendants; 2d, that several causes of action were improperly united; 3d, that it is ambiguous and uncertain; 4th, that the cause of action in the last count is barred by the Statute of Limitations; 5th, that the complaint does not state facts sufficient to constitute a cause of action. The Court sustained the demurrer, and allowed the plaintiff ten days time in which to amend his complaint. Failing to amend within the time, a final judgment was rendered for the defendants, from which he appeals.

The demurrer of Felton sets forth that the two last counts were barred by the Statute of Limitations, while that of the other defendants applied that ground only to the last count. Each count is to be deemed as a separate and independent cause of action, and the demand set forth in the last count is clearly barred by the Statute of Limitations, whether the date of the liability is January 12th, 1858, or January 12th, 1859. It is upon a liability not founded upon an instrument of writing, for no writing is referred to in that cause of 'action or count, and the two years’ limitation therefore applies to it; and as this action was not commenced until November 3d, 1862, it was not within the time limited by the statute.

As to the second count, in which the warrants are treated as written obligations to pay money, on which the defendants are liable as indorsers, it is clear that it sets up no cause of action, as was substantially held by this Court in Dana v. San Francisco (19 Cal. 486). The demurrer was, therefore, properly sustained as to the second and third causes of action. This leaves only the first cause of action to be examined.

The complaint alleges that Mrs. Carr, the wife of the defendant Wm. Carr, was, prior to her marriage to Carr, a femme sole, and as such, under the name of Mrs. Laird, was a member of the partnership firm of Hicks & Co. The defendants insist there was a misjoinder of parties in making her husband defendant with herself and the other parties. We think this objection is not well taken. She still remained hable to be sued for the debts of the firm of which she was a member, and after her marriage it was necessary to make her husband a defendant with her in all actions of that kindi All the several causes of action set forth in the complaint, arising as they do out of contracts, were properly united in one action under Sec. 64 of the Practice Act. Nor is there any ambiguity or uncertainty in the complaint. The only ground of demurrer to the first cause of action to be examined is, therefore, whether It states facts sufficient to constitute a cause of action.

•’ Hicks & Co. were indorsers upon the warrants, and the plaintiff claims that they are liable to him as indorsers of negotiable paper; and if, not in that way, then as assignors under the statute relating to. bonds, due bills, etc. (Wood’s Dig. 75.) In Dana v. San Francisco it was held that such warrants were not intended as evidence of a debt, but merely as the means prescribed by law for drawing money from the county treasury, and that an indorsement of such paper did not transfer the legal title like an indorsement under the law merchant. It is clear, therefore, that the defendants are not liable as indorsers of negotiable paper. Nor are those warrants instruments in writing, promising or agreeing to pay a sum of money, or acknowledging a sum of money to be due, within the statute relating to bonds and due bills. Of course, they cannot be held liable as assignors under that statute. It is not averred that Felton indorsed the warrants, so that neither of these grounds of liability apply to him.

If, however, it is true, as averred in the complaint, that the defendants obtained the sum of nine hundred and sixty-five dollars from the plaintiff by fraud and misrepresentation, and by the transfer of county warrants of no value, then the consideration upon which the money was paid has failed, and they have in their hands that sum of money which equitably belongs to him, aud he has a right of action to recover the same. (Kuntz v. Livingston, 15 Cal. 344, and the cases therein cited.) A. purchased a land warrant, and being ignorant of its invalidity sold it to B. for a valuable consideration. The warrant was afterwards adjudged invalid: held, that B. could recover back the price paid. (Boyd v. Anderson, 1 Overton, 428.) A payment of a note was made in bills, one of which was afterwards discovered to be counterfeit: held, that the payee could recover from the payer the amount of such counterfeit bill. (Young v. Adams, 6 Mass. 182; Maride v. Hatfield, 2 Johns. 455.) The first count in the complaint, therefore, sets forth a cause of action, and the Court below erred in sustaining the demurrers.

The judgment is reversed and the cause remanded.