Moriconi v. Flemming

DOOLING, J.

All of the defendants appeal from a judg ment rendered in favor of the plaintiff. The action was commenced against defendant Flemming to recover on two promissory notes given by Flemming to plaintiff. N. H. Development Company and Newton, its president, intervened and filed an answer and cross-complaint.

The indebtedness here sued upon is the culmination of a series of transactions, commencing in 1944, in which plaintiff gave defendant Flemming various sums of money which were

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in turn loaned to N. EL Development Company and Newton on promissory notes given in the earlier transactions to one Johnson and in the later ones to one Grote. Johnson and Grote were successively managers of Tropical Fruit Center, a wholesale distributor of fruits and vegetables in San Francisco. N. H. Development Company owns an orchard planted to oranges and olives in Butte County. The loans were made in the successive years to enable N. H. Development Company to care for and harvest its crops and were secured by crop mortgages. Prior to 1947 after the sale of the crop in each year the loans were repaid with interest by N. H. Development Company from the proceeds of the sale of the mortgaged crop. The money was paid to Johnson or Grote, by them turned over to Flemming who in turn accounted for it to plaintiff.

In 1947 plaintiff surrendered to Flemming two promissory notes given by her to him in earlier transactions which aggregated $7,000 and she gave him her note for $7,000. Later in the same year plaintiff gave Flemming an additional $3,000 and received her promissory note for $3,000. These two notes aggregating $10,000 are the basis of the judgment against Flemming.

This $10,000 was loaned by Grote to N. H. Development Company and Newton and this loan was secured by a crop mortgage given to Grote. Grote later assigned the indebtedness and the crop mortgage to Flemming and Flemming testified that she in turn made a similar assignment to plaintiff, although no such assignment was produced at the trial.

By their complaint in intervention N. H. Development Company and Newton admitted their liability to plaintiff for whatever balance was unpaid on his money which had been loaned to them by Grote, alleged that an accounting was necessary to ascertain this balance and prayed for such accounting. They further alleged that this indebtedness was secured by the continuing crop mortgage given by them to Grote in 1947 and denied Flemming’s liability on the promissory notes. Later plaintiff filed an amended complaint seeking a recovery against N. H. Development Company and Newton.