Morrice v. Fitch

Plaintiff brought suit in Tuolumne County against C.S. Fitch for $1,289 upon an alleged account due plaintiff from defendants, for services rendered and money advanced at the special instance and request of defendants. This complaint was filed July 26, 1920. A demurrer by both defendants was filed July 26, 1923. Defendant M.Q. Fitch answered on June 11, 1926. Said answer denies all the allegations of the complaint. As a separate answer and defense to said complaint, defendant M.Q. Fitch alleged that C.S. Fitch died August 19, 1923, and that the personal representative of the deceased has not been made a party to the action, and that no claim has been presented to the personal representative of the deceased, for the claim of plaintiff, and that, therefore, there is a nonjoinder of parties defendant. For another defense M.Q. Fitch plead the bar of section 337 of the Code of Civil Procedure, and also separately subdivisions 1, 2, and subdivision 3 thereof. For still another defense said defendant plead section 339 of the Code of Civil Procedure, and separately specified subdivisions 1 and 2 of said section.

The action was tried without a jury and on December 31, 1926, findings and judgment were filed and entered against the plaintiff. The plaintiff appeals to this court from said judgment. There are no findings upon the first separate defense, nor upon the defense of the statute of limitations. The findings of the trial court are upon the issue tendered by the denial of all the allegations of the complaint. No findings were made as to the other special defenses. Judgment was for the defendant M.Q. Fitch.

Appellant presents three points upon which he contends the judgment should be reversed: 1. That there was no finding as to the statute of limitations; 2. That the finding *Page 12 that M.Q. Fitch is not indebted to plaintiff is not supported by the evidence; 3. That on the facts disclosed by the evidence plaintiff is entitled to judgment.

[1] We can see no reason for a reversal of this judgment because the trial judge did not find upon the statute of limitations pleaded. In view of the finding of the court that there was no indebtedness, it was unnecessary to find upon the issue tendered by a plea of these statutes.

The same reasoning applies to the first separate defense. The finding that there was no claim whatsoever against M.Q. Fitch rendered unnecessary a finding as to nonjoinder.

[2] The second and third contentions of the appellant are, in substance, but one question, namely, was there anything due appellant from the defendant M.Q. Fitch?

The facts briefly stated were as follows: C.S. Fitch and M.Q. Fitch were husband and wife. Plaintiff began in the year 1908 working for C.S. Fitch, who was then conducting the City Hotel, at the town of Sonora, in Tuolumne County. At about that time the City Hotel, both the real estate and the personal property used in and about this hotel, belonged to Mrs. Fitch, Sr., the mother of C.S. Fitch. The "business" then being conducted in the hotel property and with and said hotel furniture and fixtures was owned by C.S. Fitch. Some time shortly before plaintiff began working for C.S. Fitch, Mrs. Fitch, Sr., by a deed of trust, conveyed the said hotel and the personal property used therein to Mrs. M.Q. Fitch, in trust for the children of C.S. Fitch and his said wife Mrs. M.Q. Fitch. The exact terms and conditions of this trust are not made to appear. This trust deed was recorded about July, 1910. At about this last-named date an account was opened in a local bank at Sonora in the name of May Fitch, this being the defendant herein, M.Q. Fitch. Into this bank account there was deposited all the earnings of the hotel venture. Mrs. M.Q. Fitch would draw all checks against this deposit account, both for the maintenance of herself and family and for the conduct of the hotel business. At the time this system of depositing the earnings in the name of May Fitch began there was already owing to plaintiff a sum largely in excess of the sum now sued for. C.S. Fitch continued to run the business down to August 19, 1923, at which time *Page 13 he died. His personal representative was not made a party and no claim was presented against his estate. Mrs. M.Q. Fitch testified that up to the time of the death of her husband she never had anything whatsoever to do with the hotel business, either as owner or manager. She further testified that she permitted the earnings of the hotel to be deposited in her name, at the request of and for the accommodation of her husband, C.S. Fitch. The record does not disclose any withdrawals of moneys from the bank for her personal use, except for such bills as her husband, C.S. Fitch, would be legally obligated to pay. There was, however, an exception in this way: C.S. Fitch had made some small speculations in mines and in lands; these investments, according to the testimony, yielded no returns, and these properties had been conveyed to Mrs. M.Q. Fitch. After the death of C.S. Fitch, Mrs. M.Q. Fitch continued the business as it had been conducted by C.S. Fitch prior to his death.