Young v. Clark
Before: Kerrigan
Synopsis
Action for Monet Deposited—Assignment—General Finding.—In an action by an assignee to recover money deposited by his assignor, where the complaint alleges the assignment, a general finding that all of the allegations of plaintiff's complaint are true is a sufficient finding of the assignment.
Id.—Demurrer for Uncertainty—Review upon Appeal.—Although there is enough uncertainty in the complaint to have warranted the court in sustaining the demurrer on that ground, yet the action of the court in overruling it is not of sufficient importance to demand a reversal, after a trial upon the merits.
Id.—Effect of Discharge in Bankruptcy—Fiduciary Capacity— Debt of Commission Merchants Barred.—The term “fiduciary capacity” used in the Bankrupt Act of 1898, as amended in 1903, applies only to technical trusts, and not to debts due by a bankrupt in the character of agent, factor, commission merchant and the like; and money deposited with a commission merchant, to cover expenditures, a portion of which remains in his hands unexpended, is covered by his discharge in bankruptcy, and cannot be recovered.
KERRIGAN, J.
The complaint alleges that at the time of the transactions set forth defendants were commission merchants, and were in.the employ of La Sociedad Anónima de Hilados y Tejides de Caniel, Lda, a corporation (plaintiff’s assignor), as its agents; that plaintiff’s assignor deposited with its said agents certain moneys, to be paid out on its order; that said agents expended a portion of these funds on said assignor’s account; and that the money claimed by plaintiff is a balance remaining in the agents’ hands after such expenditures had been made; which balance plaintiff alleges the defendants refuse to pay over. Upon the issues framed by the pleadings judgment was entered for plaintiff, from which judgment this appeal is prosecuted.
1. Appellant claims that there is no finding on the issue of the assignment of the claim to the plaintiff. There is no special finding on the subject, but it is covered by the following general finding: “That all of the allegations of plaintiff’s complaint and answer to the affirmative allegations of defendants’ answer and cross-complaint are true.” The part of this finding relating to the allegations of the answer is open to criticism for uncertainty; but the finding is definite and certain—and therefore sufficient—wherein it states “that all the allegations of plaintiff’s complaint . . . are true.”
(Gale
v.
Bradbury,
116 Cal. 40, [47 Pac. 778].)
Appellants’ special demurrer to the complaint was overruled, and that ruling is now assigned as error. We think there is enough uncertainty in the complaint to have warranted
[196]
the court in sustaining the demurrer on that ground; but the action of the court in this regard is not of sufficient importance to demand a reversal of the judgment.
(Alexander
v.
Central L. & M. Co.,
104 Cal. 536, [38 Pac. 410].)
3. During the trial defendants were permitted to amend their answer by pleading in bar of the action their adjudication in bankruptcy, in the United States district court; whereupon plaintiff amended his pleadings by alleging that his cause of action was to recover moneys held in trust by defendants for plaintiff’s assignor, which would not be released by a discharge in bankruptcy, and that said district court had granted permission to plaintiff to continue the prosecution of this action. The court found these allegations to be true, and a judgment was accordingly entered.
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