Deeble v. Exchange National Bank

JAMES, J.

A demurrer in which special and general grounds were assigned was sustained to the third amended complaint of the plaintiff without leave to amend, and judgment of dismissal followed, from which this appeal was taken. It is recited in that judgment that plaintiff’s attorneys stated to the court that they did not desire to further amend, and no question is made as to that part of the order which denied leave to amend the pleading. The question argued is as to whether the complaint contained a statement of facts suffi

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cient to constitute a cause of action against defendant. It was first therein alleged that on the first day of July, 1913, one J. W. Young was the owner of certain written contracts for the sale of real property, upon which contracts amounts' became due and payable each month from the purchasers; that the total amount of money due under such contracts was in excess of eighty thousand dollars. The complaint then alleged :

“That said contracts and payments made under and pursuant thereto were at all the times aforesaid in the possession of and held by the defendant corporation to and for the use and order of said J. W. Young.

“That on or about July 1st, 1913, said J. W. Young owed plaintiff the sum of fourteen hundred and sixty ($1460) dollars for labor and services performed for said J. W. Young during a period of one year next preceding said date, at his special instance and request.

“That plaintiff and said J. W. Young on or about the said 1st day of July, 1913, entered into an agreement whereby said plaintiff accepted in full payment for said indebtedness of fourteen hundred and sixty ($1460) dollars from said J. W. Young an order and assignment of certain moneys in the sum of fourteen hundred and sixty ($1460) dollars due on contracts for the sale of lots in Industrial White City Tract, Long Beach, owned by said J. W. Young and held by defendant for collection for said J. W. Young.

“That on or about the 1st day of July, 1913, within the county of Los Angeles, state of California, the said J. W. Young, pursuant to said agreement with plaintiff set out in paragraph IV herein, executed to the defendant corporation a certain writing in words and figures hereinafter set forth. That the defendant corporation accepted the terms of the said writing and thereafter on or about the same day defendant delivered the same to the plaintiff and at the same time and place entered into an oral agreement with plaintiff that defendant, in consideration of plaintiff releasing said J. W. Young from payment of the said fourteen hundred and sixty ($1460) dollars, would keep and retain the aforesaid contracts in its possession for a period of time sufficient to enable it to pay plaintiff the total sum of fourteen hundred and sixty ($1460) dollars from moneys it might receive under and pursuant to the aforesaid contracts, and would pay the