111 Cal. 588 | Cal. | 1896
This is an appeal by defendants upon the judgment-roll from a judgment in favor of plaintiffs.
Whatever may appear to be the merits of the case on the appeal from an order denying a new trial—which we learn from counsel is on its way here—we do not see anything on the face of the judgment-roll which calls for a reversal. The pleadings and findings (and briefs) are quite voluminous; and it is contended by appellants that the complaint is fatally defective, and that the findings do not support the judgment. There was a demurrer to the complaint upon the ground, first, of want of a statement of facts sufficient to constitute a cause of action, and also upon the grounds that several causes of action have been improperly united, that the complaint is ambiguous, that it is unintelligible, and that it is uncertain; and upon the four latter grounds there are eighty-six specifications. It is impracticable to notice here all these matters in detail, and we will state only our general views as to the sufficiency of the complaint.
The complaint is quite lengthy and we will give only its substance. It is averred that the plaintiff, the San Pedro Lumber Company, was, during all the times mentioned in the complaint, a corporation engaged in the lumber business, and having its ¡principal business and place of business at San Francisco; that the plaintiff, John A. Hooper, was its president; that it had a branch of its business in the county of Los Angeles; that the appellant Reynolds was its trusted agent and employee at Los Angeles for several years prior to September, 1889, and had the sole charge and management of its business at the latter place; that it was his duty to safely keep and accurately account for all moneys and property of the company coming into his hands at Los Angeles, and to oversee and direct all other employees of the company at that place, and see that they honestly and properly performed their duties; that he was to furnish from time to time statements of the accounts, affairs, and property of the company, and pay over
It is then averred that prior to September 25, 1889, the appellant at divers and sundry times received considerable sums of money for the use and benefit of said company which he never paid over or accounted for; that he appropriated to his own use moneys coming into his hands as such trusted agent and in the conduct of the business; that considerable sums of money were lost to the company through the dishonesty and embezzlement of other employees in consequence of the neglect of said appellant to properly discharge his duty as such agent and manager of said business; that considerable sums of money and property were lost to the company through the willful failure and neglect of appellant to discharge his duties, and his willful and wrongful mismanagement and fraud; and that during all of said times the said appellant “ had the direct charge and control of the books and accounts of said corporation, and that he willfully and fraudulently caused the same to be kept in a false and fraudulent manner for the purpose of covering up his aforesaid irregular transactions in connection with the discharge of his said trust.” It is also averred “ that plaintiff is unable to state the precise amount of the several items, but, according to his information and belief, charges that the full amount thereof equals in the aggregate sixty-five thousand dollars, or thereabouts.”
It is further averred that on said September 25,1889, while the amount of the indebtedness of appellant to the company was “unsettled and unascertained and in dispute,” the appellant, Reynolds, “ in order to secure” to said company the payment by him of all moneys then due or owing by him to it, “ or which might thereafter, upon careful investigation of the books and affairs of
The foregoing is a short statement of the substance of a long complaint; but it contains all that is needful for a consideration of its sufficiency, except such further matter as may be mentioned hereafter.
It is difficult to see how a general demurrer could have been sustained to the complaint; for it certainly states facts sufficient to constitute a cause of action upon the ' thirteen thousand dollar note. Nor is the cause of action upon the note mentioned in that part of the demurrer. which is based upon the improper joining of several causes of action. Indeed, the case, so far as the complaint is concerned, seems to be argued on both sides upon the theory of leaving out of view the averments about the note; and the contention of appellants’ counsel is that the other parts of the complaint are defective because they do not state sufficient facts, because they improperly unite several causes of action, and because
The complaint sets forth only one cause of action? which is for the enforcement and foreclosure of a lien; and, as necessary to the determination of the amount for which the lien may be enforced, an accounting. For those purposes the averments of the complaint are sufficient. They show that the appellant was the trusted agent of respondent, acting in a fiduciary capacity, and having for a long period of time the entire charge and control of its business at Los Angeles; and that by various kinds of misconduct, which are specially described, and which are averred to consist of a large number of items, he caused losses and became liable in large sums of money, the true amounts of which cannot be ascertained and determined without an accounting by appellant of the administration of his trust. This is sufficient ground for an accounting in equity. “ Even where jurisdiction in equity is limited to cases where at law there is no full, complete, and adequate remedy, a court of equity has jurisdiction to enforce a pledge of stock given as security for claims and liabilities then existing, or afterward to be incurred, where these claims and liabilities are alleged to consist of a large number of items of money loaned, notes discounted, and indorse
Such, then, being the nature of the action, and the facts averred warranting the institution of such a~ tion, the points made by appellant that~ each averment of acts of misconduct by appelhu~t constitutes a separate cause of action which ç~unuot be properly joined with either of the others, an~cl that the complaint is Un certain, etc., because it does not state more particularly how each item of ajieged liability arose, when it was created, and espee~ally its amount, cannot he maintained. The pri~ose of the action was to call appellant to an aceoq~ting' touching matters peculiarly within his knowl~4~e and arising out of the trust reposed in him; and"we think that for this purpose the cause of action ijstated with sufficient particularity. (West v. Brewster, 1 Duer, 647; Green v. Brooks, 81 Cal. 333; Rippe v. Stodgill, 61 Wis. 38; Colonial etc. Mortgage Co. v. Hutchinson Mortgage Co., 44 Fed. Rep. 219.) And the character of the complaint is not changed by the avS~ment that before the commencement of the action an investigation had shown that the respondents had ~ffered a loss of "upward of sixty-five thousand dollars,"
(We are not able to see any insufficiency of the find~higs to support the 3udgment. They dispose generally the issues made by the plea ling~, are very full, and the objections to them are mainly those made to the coiiiplaint. There is a good deal of adverse criticism by appellant's counsel of the finding of the court concerning certain book-keepers and other employees of respondent, that "it was not their duty to keep a correct and accurate, or any, set of books, or to send
A good deal is said in the briefs about á, certain tender alleged to have been made by appellants; but without determining the questions whether the\ situation was such as to make a tender available at all or whether it was properly made and kept good, it is ¡sufficient to say that it was of a sum far less than the am emit found due. We think that the denials in the answer to the cross-complaint are sufficient—particularly in the absence of any showing that the case was not triad upon the theory of the sufficiency of such denials.
It is not feasible, within a reasonable space, to follow further the discussions of counsel. We see no valid rea-, son -for disturbing the judgment on this appeal.
The judgment is affirmed.
Temple, J., and Henshaw, J., concurred.