Elias v. Erwin

SHINN, P. J.

Plaintiff brought this action against Paul E. Erwin, his wife, Helen Erwin, Worcester Thomas, and his wife, Katherine Thomas, for the recovery of the sum of $4,500 allegedly deposited with the defendants to be used in the purchase of cattle for plaintiff which were to be sold for his account. It was alleged that defendants orally agreed to keep the sum of $4,500 contributed by plaintiff in a separate account, to earmark cattle purchased therewith as the property of plaintiff and to keep intact in money or cattle the amount of plaintiff’s contribution plus 3 per cent of the sales price of cattle sold, plus also 50 per cent of the profits from the use of the money advanced by plaintiff; that defendants did not place plaintiff’s money in a special account, did not earmark cattle purchased therewith; that they purchased cattle with the money and sold them; that plaintiff demanded payment of $4,500 plus $158.50, but that defendants had paid only the sum of $128.50. A second cause of action accused Helen Erwin of fraud in obtaining the money and a third cause of action sought recovery of $4,635 as for money had and received. The action was tried to the court upon the complaint and the answers of the defendants.

[315]

Findings were in favor of plaintiff as against Paul E. Erwin and Worcester Thomas on the first cause of action; judgment was entered against these defendants for $4,635 and against Helen and Paul E. Erwin and Worcester Thomas for $1,190.05,

1

on the second cause of action, which sum was not in addition to the sum of $4,635. There were no findings on the third cause of action. Paul E. Erwin and Helen Erwin made a motion for new trial. An amended and supplemental complaint was filed to conform to the proof. It repeated the allegations of the original complaint with respect to the agreement, the deposit of the money, the breach of the agreement by Paul E. Erwin and Worcester Thomas, the purchase and sale of the cattle, the demand by plaintiff and the refusal to pay. In the hearing and ruling on the motion, the court changed its findings and conclusions (Code Civ. Proc., § 662). It was found that the foregoing allegations were true. The amended complaint repeated the allegation of fraud of the second cause of action of the original complaint and also the cause of action for money had and received. The court made no findings with respect to these allegations.