Sessions v. Miller

[14]

CONREY, P. J.

The defendant appeals from the judgment and from an order denying his motion for a new trial.

The action was commenced against Sarah Johnston Cox to recover the sum of three hundred and five dollars alleged to have been paid by the plaintiff at the request and for the use of Mrs. Cox, the payment having been made to a fund for the widening of certain streets in the vicinity of land owned by her in the city of San Diego. Mrs. Cox died while the action was pending and the defendant executor has been substituted in her place.

It appears that on October 11, 1907, Mrs. Cox executed and delivered to plaintiff an agreement to sell to plaintiff two lots in the above mentioned tract of land for the sum of one thousand five,hundred dollars, “to be paid at the Bank of Commerce upon the delivery of a deed and certificate of title made by the Abstract Title & Insurance Company.” Appended to the same contract and dated on the same day is an additional agreement by Mrs. Cox as follows: “I agree to subscribe $300 to the fund for widening of Washington and Lewis streets and to pay the same with a check of the Bank of Commerce from the amount deposited to my account by K. 0. Sessions.” At that time there was being collected a fund paid in by various subscribers to a custodian, which moneys were to be used for the widening of said streets. It does not appear that the plaintiff was one of those subscribers, and it does not appear that Mrs>. Cox made any subscription to that fund, or any agreement with reference to a subscription, other than the above quoted written promise made to the plaintiff.

On October 16, 1907, without having deposited any moneys to the account of Mrs. Cox and without any request from Mrs. Cox, the plaintiff paid to the custodian of said fund the sum of three hundred dollars, took a receipt showing that she had made that payment and that it was made for Mrs. Cox “a/e widening of Washington and Lewis streets.” The plaintiff claims that her failure to pay or tender the one thousand five hundred dollars was caused by some defect in title of Mrs. Cox’s property which prevented the issuance of a' certificate showing clear title in the vendor; and we here assume that this claim is shown to be well founded. It is not alleged in the complaint or found by the court that Mrs.