McDevitt v. Chas. Corriea & Bros.

Plaintiff brought this action to recover from the defendants the aggregate sum of $1,101.33, alleged to be balances due her and four other parties who assigned their claims to her prior to the commencement of this action, from the sale of turkeys to the defendants. The complaint, which was filed on the thirteenth day of January, 1923, is unverified, and, in five different causes of action, each in the form of a common count, sets up plaintiff's own and the claims of her several assignors for goods, wares, and merchandise sold to the defendants.

The answers of defendants Chas. Corriea Bros. and Charles Corey (erroneously sued as Charles Correy), each denied the allegations of each of the causes of action set up in the complaint. The defendants A.C. and Rose Biggerstaff failed to answer the complaint and judgment against them was taken by default.

The case as to the answering defendants was tried by the court, sitting without a jury, and the findings and the judgment were against them and the Biggerstaffs in favor of the plaintiff in the total sum of $1,068.71. The defendant, Chas. Corriea Bros., made a motion for a new trial, which was denied, and the appeal is by said defendant from the judgment.

According to his answer and testimony, the defendant Chas. Corriea, at the time that the transactions herein involved took place, was a commission merchant, buying and selling farm produce in the city of San Francisco under the firm name of "Chas. Corriea Bros.," said Chas. Corriea being the sole owner of said business and hence the sole member of said firm. (We shall hereinafter refer to said defendant as Corriea.)

It appears that, either in the month of July or August, 1922, the defendant A.C. Biggerstaff, a resident and farmer and turkey-raiser in Yuba County, entered into some sort of understanding or arrangement with Corriea, whereby the former was to purchase and ship turkeys to the latter at San Francisco for the Thanksgiving and succeeding holiday trade in said city. Said Biggerstaff subsequently employed the defendant Charles Corey to assist him in the purchase of turkeys for the purpose stated. Corey was also a resident of and a farmer in Yuba County. A few weeks prior to Thanksgiving Day in 1922 said Biggerstaff and Corey purchased the turkeys of a number of the turkey-raisers in Yuba County and shipped them to Corriea in San Francisco. *Page 248 Among those from whom turkeys were thus purchased were the plaintiff and her assignors. Corey, in a majority of the instances of the purchases so made, personally conducted the negotiations and completed the bargains leading to such purchases. The Biggerstaffs turned over their check-book to Corey, the understanding being that Corey, on purchasing turkeys, should give the vendor a check signed by the Biggerstaffs on the First National Bank of Marysville, at Marysville, an arrangement having been made with the cashier of said bank by said A.C. Biggerstaff that said checks were to be held by the bank until the money called for thereby was deposited in the bank by Corriea upon drafts drawn upon him by said Biggerstaff. The plaintiff and her assignors were each given such a check for the amount for which the turkeys bought from them totaled. We do not understand from the record that the plaintiff or her assignors, at the time of the sale of their turkeys, knew of the arrangement spoken of between A.C. Biggerstaff and the bank with regard to the payment of the checks. But, at all events, the plaintiff and her assignors presented their checks to the bank for payment, but they were dishonored because of there being no funds in the bank from which they could be paid. Some time thereafter — a week or ten days or perhaps a longer period — the plaintiff and her assignors received or were paid one-half of the amount for which the checks so issued to them respectively called.