123 Cal. 634 | Cal. | 1899
Action for money had and received. Plaintiff is assignee of Adele Hesser, from whom it is alleged that defendant received the sum of five thousand dollars, under a verbal agreement, “upon the express condition that the defendant would immediately, upon meeting his majority, make, execute, and deliver to said Adele Hesser, as security for the payment of said sum, an assignment of all the right, title, and interest in and to” certain property situated in the city of San Francisco, of which defendant was the owner of an undivided one-eighth interest; it is alleged that at this time defendant was over the age of eighteen years; that prior to the commencement of the action defendant came of age and said Adele Hesser demanded that defendant execute said assignment, but he failed and refused to do so and wholly failed to secure said sum; on or about January 30, 1895, defendant signed a promissory note for said sum, with interest at seven per cent, payable eleven months after date, “and attempted to deliver the same to said Adele Hesser, and left the same with said Adele Hesser at her residence, but said Adele Hesser then and there refused to accept the said note .... unless said defendant would secure
Ike cause was tried without a jury, and the court found that defendant received the five thousand dollars under the verbal agreement as alleged in the complaint; it was paid as follows: two thousand dollars about September 36, 1894, and three thousand dollars about December 3, 1894, and that defendant gave his two notes for these amounts bearing date as alleged in the answer, but that they were not accepted “as absolute or con
Judgment passed for plaintiff, from which and from the order denying his motion for a new trial defendant appeals.
1. Appellant claims that the complaint does not state facts sufficient to constitute a cause of action, but “does state facts which effectually dispel the legal theory upon which it is framed.”
The basis of the action is that defendant has received money which, under the circumstances, it would be inequitable for him to retain. The complaint alleged that defendant obtained from Mrs. Hesser five thousand dollars upon a promise to give a certain security therefor at a certain time. The condition was not complied with, and, being void, it could not be enforced. This void feature of the transaction does not preclude recovery. An action on quantum meruit or quantum valebat will lie where money is paid or services performed under a contract void by the statute of frauds, and we see no difference in principle where the action is for money had and received and the contract is void for other reasons. In Buck v. Eureka, 109 Cal. 504, where the action was on a void contract, this court held that an action would lie for services rendered on quantum meruit. Hpon the proposition see, also: Day v. New York Cent. Ry. Co., 51 N. Y. 583; 89 N. Y. 616; Cook v. Doggett, 2 Allen, 439; Jarboe v. Severin, 85 Ind. 496; Reynolds v. Harris, 9 Cal. 340. But it is further said that, although the complaint averred nondelivery of the note and refusal to accept it by Mrs. Hesser, it is alleged that an offer was made to return it, which shows de
2. Appellant's next five points may be summarized and treated together. Defendant’s agreement to secure the money was void; if he made it he had the right to and did disaffirm, and under the provisions of section 35 of the Civil Code, he was not bound to restore the money unless he had the identical money he had received, the burden of proving which was on plaintiff; that the five thousand dollar note was a substitution for the first two notes and changed the time of payment, and was acquiesced in by Mrs. Hesser, and hence it became a. new contract on conditional payment, and operated at least to postpone payment and as full performance of defendant’s agreement; that Mrs. Hesser could not hold the note and at the same time demand payment of the money, and she did not rescind or attempt to rescind.
The evidence tended to show that defendant obtained the money as alleged and as found by the court, and upon the agreement as found by the court. A few days before defendant came of age he got from Mrs. Hesser the two notes first given for the purpose, as he said, to use them in settling with his guardian “and to give her a transfer of his property.” He came of age January 5th, and the next day he came to Mrs. Hesser, as she testified, and said to her: “I will be up in the evening and I can bring you the deed to my property and you can sell it and make me paid.” He said: “You are my mother and that he would treat me as a mother.” These notes were néver paid and were not returned to Mrs. Hesser, but were marked paid by defendant. She did not see him again until about the 20th of January, “when,” as she testified, “he rang the bell and came in in a passion.” I said “Hilly, what is the matter with you?” He said, “Here!” and he flung that five thousand dollar note on the table, and he said, “If you don’t take this, madam, you will never get a cent.” I said, “What is the matter, Hilly?” He said, “I will make myself execution proof, like my brother, Isidor Rosenorantz, and you will get nothing.” There was evi
It is conceded that the verbal agreement to convey the property was void, and, being void by the statute of frauds and not because of defendant’s minority, it may not have been necessary for him to disaffirm, and possibly his disaffirmance or nondisaffirmance would not affect the case. He did, however, dis-affirm the agreement to convey. The action is not upon this void agreement; it arises out of the relations of the parties, and rests upon the rule that, while the law will not give the action on the agreement, it regards it as morally binding, and for that reason will not give relief against a party not in default nor in favor of a party who is in default in his performance of the agreement; and where a party, who has received money under such an agreement, has refused to perform it, the law, to do justice to the other party, will imply an assumpsit. This being the rule between parties ordinarily, does it apply to a minor over the age of eighteen years under our Civil Code? There are certain obligations, not here involved, which the minor may not disaffirm. (Civ. Code, secs. 36, 37.) In all other cases the contract of the minor, “if made whilst he is under the
It may be true, as appellant claims, that the law elsewhere is that no restitution is required “unless the appellant had the identical money he had received.” But, whatever may be the law under other statutes, we think our code is too plain to admit of any such interpretation, and was so made to obviate perplexities existing where the statutes had not made the law clear. (See Code Commissioners’ note to Civ. Code, sec. 35.) The consideration here was the five thousand dollars received by defendant. Conceding, but by no means admitting, that the duty of the minor only goes to the extent of returning the identical money received, if he have it, as seems to be held under some statutes, our code adds the words “or paying its equivalent,” which clearly implies that if he cannot restore the identical consideration received he must pay its equivalent. In this case defendant received money, and that or other money is its only 'equivalent. (See note, supra, to Craig v. Van Bebber, at page 694; Combs v. Hawes (Cal. Nov. 19, 1885), 8 Pac. Rep. 597.)
The claim that the five thousand dollar note was a substitution and a new contract in place of the first two notes is not borne out by the evidence, and the finding is to the contrary. It seems that defendant obtained possession of these latter notes under pretense that he wanted them for a particular purpose and not to be canceled, which he assumed to do after getting possession of them. They were one-day notes, and were not received as payment but mere evidences of the debt until Mrs. Hesser could get the deed promised her. The five thousand dollar note was thrust upon Mrs. Hesser under circumstances justifying the finding of the court that she did not retain it with any intention of accepting it as conditional or absolute payment of the indebtedness evidenced thereby. That she re
There was no offer to return the interest money paid by defendant, but this was voluntarily paid by him to apply to Mrs. Hesser’s mortgage according to agreement, and, furthermore, was but the reasonable compensation for the use of the money, to the return of which defendant was not entitled. (Wilson v. Moriarty, 77 Cal. 596.)
3. Appellant makes an omnibus objection that “each and every ruling of the court below, which was made the object of objection and exception, was erroneous,” citing many folios of the transcript but not pointing out why error is claimed as to any one of these numerous assignments. This method of presenting errors would, under the practice of this court, .justify ignoring them altogether. We have, however, looked through the transcript in obedience to the learned counsel’s request, but can discover no error prejudicial to defendant.
.We are of the opinion that the judgment and order should be affirmed, and so advise.
For the reasons given in the foregoing the judgment and order are affirmed. Henshaw, J., Temple, J., McFarland, J.