King v. San Jose Pacific Building & Loan Ass'n

STURTEVANT, J.

The plaintiff has appealed from a judgment in favor of the defendant in an action pleading several counts as for money had and received. In support of his appeal he has brought up a bill of exceptions.

Each cause of action represented a claim of a different person and such claims were assigned to the plaintiff who sued thereon as assignee. Prior to July 1, 1931, the defendant was, and has continued to be, a building and loan association. Prior to that date it had obtained many depositors including all of said assignors. No one of the assignors was a stockholder. On February 1, 1932, the defendant ceased to pay withdrawals. During the year 1934 the assignors sold to third parties their certificates of deposit for about fifty cents on the dollar. Claiming that in refusing to pay withdrawals the defendant breached its contract, the plaintiff asserted that he was entitled to recover, as money had and received, the difference between the amount of the deposit claim of each of his assignors and the amount each of them received from his or her vendee.

[707]

Before we proceed to discuss the evidence it is necessary to consider the pleadings and findings. As stated above, the plaintiff’s complaint alleged in each count a cause of action for money had and received. It also contained a formal allegation that plaintiff's assignors had fully performed. The defendant’s answer contained some admissions, but denied many material allegations contained in plaintiff’s complaint. The answer set up the statute of limitations. (Secs. 337, 338 and 343, Code Civ. Proc.) The findings, in effect, find that all the allegations of the plaintiff’s complaint are untrue and all the allegations of defendant’s answer are true. There are no other findings. The complaint was filed August 20, 1938.

As a written contract theretofore existed between each of the assignors and the defendant, the right of an assignor to sue on a common count was not unlimited. In

Castagnino

v.

Balletta,

82 Cal. 250 [23 Pac. 127], at page 258, the court quotes with approval as follows: “1. So long as the contract continues