Warren v. Burch

BEAUMONT, J.,

pro tem.

Plaintiff’s complaint is in two counts. The first alleges that defendant Charles E. Burch received the sum of $17,500 belonging to plaintiff and his assignors, which he agreed to pay them on demand, but that without authority he delivered the same to the other two defendants, M. E. Lyon and Imperial Live Stock and Mortgage Company. The second count alleges that Charles E. Burch was attorney of plaintiff and his assignors; that he, while acting as their attorney, received said sum of money for the use and benefit of plaintiff and his assignors; that, with the aid of defendant Lyon, he fraudulently appropriated it to his own use and to the use of defendants Lyon and Imperial Live Stock and Mortgage Company. Each count alleges demand was made on all defendants,

[470]

but that payment was refused. In addition to the denials contained in the answer of each defendant, said Imperial Live Stock and Mortgage Company pleaded that plaintiff and his assignors had notice that the money in question was to be applied to the credit of George W. McCain and that there was no objection made thereto; that the money was so applied and that the Imperial Live Stock and Mortgage Company had delivered to said McCain certain evidences of indebtedness; that McCain received the benefit of said money, and that defendant Imperial Live Stock and Mortgage Company by reason thereof had suffered detriment in the sum of $17,500. The court found against plaintiff’s contentions. From the judgment in favor of defendants plaintiff has appealed solely on the ground of the insufficiency of the evidence. There are substantial conflicts of evidence upon many of the material points of the case. The finding of the trial court will not be disturbed where the evidence is conflicting, nor can it be disturbed because of the fact that different inferences might be reasonably drawn from the testimony.

(Ritchey

v.

Watson,

204 Cal. 387 [268 Pac. 345].) We are of the opinion the evidence is sufficient to support the judgment.

The evidence shows that the Imperial Investment Company, which will be herein referred to as the investment company, was a partnership, and that it undertook to sell securities of Imperial Live Stock and Mortgage Company, a corporation. The corporation will be designated as the mortgage company. Agents of the investment company sold stock in the mortgage company to J. A. Warren, plaintiff herein, and to Charles Hook, J. L. McCain, Pete McCain, Arthur McCain, George W. Cameron and J. W. Vasey, plaintiff’s assignors. A comparatively large quantity of this stock was purchased by George W. McCain. These men were, at the time of the purchase of stock in the investment company or had been prior thereto, engaged in the cattle business in San Diego County. Plaintiff and plaintiff’s assignors, with the exception of Vasey and Cameron, were related either by blood or marriage to George W. McCain. George W. McCain died before the trial was had. At the time of the purchase of stock by plaintiff and his assignors, notes were given by them to the investment company in payment thereof. Certain of these notes were