Poile v. Stockton Merchants Assn.

WARNS, J. pro tem.

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The Credit Bureau of Stockton, a corporation, appeals from a judgment awarding the plaintiff $3,500, together with interest thereon at the rate of 7 per cent per annum, plus costs, upon a claim for damages for negligence on the part of the defendants in failing to prosecute a claim for the collection of a certain cheek in the sum of $3,500 which plaintiff assigned to the Stockton Merchants Association, doing business under the name and style of Stockton Merchants Association Adjustment Bureau, for collection.

The facts most favorable to the plaintiff are these: On May 15, 1950, Harold Brayton, manager of the Hotel Wolf

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in Stockton, issued a check to plaintiff (respondent herein) in the sum of $3,500 to pay plaintiff for services rendered by him and the title company by which he was employed in connection with the sale of said hotel and in straightening out the financial affairs and difficulties of said hotel generally. Charles Tesseyman was the owner of said hotel. He resided in the Bay Area and the plaintiff resided in Stockton. Tesseyman knew that Brayton had been working with plaintiff in connection with these matters. Tesseyman had given Brayton a power of attorney to borrow money and had authorized him to sign checks. Plaintiff testified that Brayton had also exhibited to him a general power of attorney from Tesseyman.

The cheek in question was presented to the bank for payment but was not honored by reason of insufficient funds in the account. Thereafter, on September 18, 1950, plaintiff assigned his claim against Tesseyman and Brayton on the cheek for services and moneys loaned to appellant’s predecessor, Stockton Merchants Association, doing business under the name and style of Stockton Merchants Association Adjustment Bureau. Appellant corporation herein became the successor in interest to said association on January 4, 1951. Suit was commenced by the collection department of said association on said claim on September 28, 1950, in the Superior Court of San Joaquin County. A motion for change of venue was made and the action was transferred to Marin County, which was the county of residence of Charles Tesseyman. It was stipulated in the instant case that since the removal of that action to Marin County no further proceedings were had and that the matter had not been reduced to a judgment.