Wilkinson v. Zumwalt

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

This is a motion to dismiss an appeal for failure on the part of the appellant to state the points or print in his brief the evidence upon which he relies for a reversal.

Judgment was rendered in favor of the respondent for possession of certain reclamation district warrants, or upon failure to deliver the same, for their value, which was found to be the sum of $2,105.93. The appeal was perfected pursuant to section 953a of the Code of Civil Procedure. The reporter’s transcript of proceedings, properly certified by the trial judge, was duly filed, The judgment-roll was also certified and filed. The appellant’s printed brief was filed August 11, 1930. In what purports to be a summary of the evidence, this brief recites that plaintiff’s intestate owned 119 reclamation district warrants; that Charles K. Atran was acting as attorney for the estate of the deceased and procured an order of court to sell the warrants; that the attorney negotiated with the defendant to sell the warrants for an agreed price; that the defendant drew his check upon a Colusa bank for the purchase price in favor of the attorney and delivered to him the check; that the attorney had possession of the warrants, and upon receipt of the check delivered the warrants to the defendant, promising to promptly obtain an order of the probate court confirming the sale; that the sale was not confirmed. A year after the delivery of the warrants to the defendant, the plaintiff demanded their return, but failed and refused to refund the money which was paid therefor. The brief then asserts:

“Defendant contends that the administrator cannot demand the return of the warrants which were delivered to defendant, and for which defendant paid the full purchase price, without refunding or offering to refund the purchase price thereof to the defendant.”

From the foregoing statement it may be reasonably inferred the appellant contends the judgment and findings are not supported by the evidence because there is a lack of

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proof that the plaintiff refunded or offered to restore to the defendant the purchase price of the warrants as a necessary-precedent to the maintenance of an action for replevin. The soundness of the legal proposition is not here involved.

The brief then proceeds to argue with the support of citations of law, that the attorney was held out by the administrator of the estate as his agent who had the possession of and authority to sell the warrants and accept the pay therefor, and that the administrator was bound as a trustee of the purchase money to procure the confirmation of the sale or refund the money.