19 Cal. App. 2d 668 | Cal. Ct. App. | 1937
In an action to quiet title the trial court made findings of fact in favor of the plaintiffs and from the judgment entered Helen C. O’Connor, one of the defendants, has appealed.
But the plaintiffs call to our attention the fact that the defendant did not plead those facts in her answer, did not offer to amend, and submitted the case on different issues. Those facts are true in part. She- alleged she obtained a judgment against the plaintiffs and introduced in evidence the judgment in favor of Miss Luscombe. She took the stand and, without objection, she testified to the facts regarding her assignment to Miss Luscombe, and no witness contradicted her. While it would have been better practice if the defendant had pleaded the facts showing she was the owner and that Miss Luscombe was merely an assignee for collection, the facts came out during the trial and the trial court should have made findings thereon. (Sun-Maid Raisin Growers v. Papazian, 74 Cal. App. 231 [240 Pac. 47].) It found the fact to be that Miss Luscombe recovered a judgment, but it did not continue and find that she did so as the assignee of this defendant for collection. It found that this defendant did not recover a judgment against the plaintiffs. As we have shown above, she did recover a judgment in the name of Miss Luscombe and the latter was acting merely as her trusted agent. The finding last mentioned is not sustained by the evidence.
Over the objection of the defendant, the plaintiff introduced in evidence a contract signed by the plaintiffs and Mr. Herndon for the satisfaction of said judgment. That
In the record there is evidence that the plaintiffs paid to Mr. Herndon $150, but there is no evidence that they have executed a deed to this defendant. As the action must go back for another trial, it is proper to say that from the uncontradicted evidence it appears this defendant placed in the hands of Mr. Herndon, as her attorney, a claim for collection and that he accepted the employment. As such agent it is clear he was authorized to collect said claim and these plaintiffs were within their rights in making payments to him. (Code Civ. Proe., see. 283, subd. 2.) As to how he applied said payments, if any, the plaintiffs were not concerned. They were entitled to credits for payments made. The trial court made a finding that the above-mentioned judgment has been paid. The finding is too broad and is not sustained by the evidence, as only a part has been paid.
As Mr. Herndon was employed to collect this defendant’s claim, it is clear he had power to receive payment of the whole or any part of the amount due. (Code Civ. Proe., see. 283.) But it is statutory that he did not have power under his employment to satisfy said judgment for a sum less than that shown on its face without first obtaining the consent of his client. (Code Civ. Proe., sec. 283, subd. 2; Preston v. Hill, 50 Cal. 43 [19 Am. Rep. 647].)
The plaintiffs contend that the facts present a controversy between this defendant and her assignee, and that with that subject the plaintiffs are not interested. Continuing, they claim the said assignment passed the legal title and, in the absence of fraud or mistake, they are not concerned.
Prior to April 26, 1934, no payments had been made to anybody. But prior to that date the plaintiffs knew this defendant was the real party in interest and Mr. Weiner called on her and offered to make payments on the judgment. Mrs. O’Connor told him she would do nothing except .through the advice of her attorney. Mr. Weiner then called on Mr.
The judgment is reversed.
Nourse, P. J., and Spence, J., concurred.