White v. Thompson

WASTE, P. J.

Plaintiff appeals from the judgment of nonsuit and dismissal.

Prom the bill of exceptions the following facts appear: The defendants, copartners, on or about June 20,1915, ordered from the Santa Cruz Portland Cement Company a carload of cement of the value of $820.70, which is the subject matter of the action, and agreed to pay for the same within a reasonable time after it was delivered to them. The Cement Company shipped the cement to the defendants at Visalia, as the consignees. On the 28th of June of the same year defendants wrote to the Cement Company, stating that they had delivered the cement to W. H. Worswick, Jr., and requested the Cement Company to give the defendants credit for the sale price of the cement and forward the invoice covering it to said Worswick at Visalia. Believing that an arrangement had .been made between Worswick and the defendants, whereby Worswick had agreed to pay for the cement, and induced by this belief, the Cement Company gave Thompson Brothers credit for the cement and the charge was then made by it against Worswick for the amount, which appears to have been his initial account with the company.

Some months later the defendants and the Cement Company had an accounting with each other, from which it appeared that there was a balance due to the defendants from the Cement Company, in the sum of $412.57. At the request of defendants this credit balance on the books of the company was transferred to the credit of other parties, and the account was considered settled. Shortly thereafter, the Cement Company learned for the first time that the defendants had merely loaned the cement in question to Worswick, and that it had all been returned by him to the defendants, and that there had never been any agreement between defendants and Worswick' for the payment by him to the company.

Immediately upon ascertaining these facts, the Cement Company canceled the credit theretofore entered on its books

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in favor of the defendants, likewise canceled the charge it had entered against Worswick, and re-entered the amount of $820.70 on its account against the defendants. After attempting to collect the amount, which defendants refused to pay, the Cement Company assigned, and set over, to the plaintiff the account, and plaintiff instituted this action. The complaint is in five counts, the first four being common counts, and the fifth setting out the facts, substantially as they appear from the evidence. At the conclusion of plaintiff’s "case, from which the foregoing facts appeared, the court granted defendants’ motion for a nonsuit, and plaintiff appeals. The action of the trial court in sustaining defendants’ motion for a non-suit is the sole assignment of error on appeal.