Bonner v. Lehfeldt

BRITTAIN, J.

The appeal is from an order supplementary to execution directing the appellant, as debtor of the judgment debtor, to pay the amount of a judgment to the sheriff. The plaintiff’s affidavit follows the ordinary form in which the rendition of the judgment is set forth, together with the issue, levy, and unsatisfied return of execution. It was averred that Tremain, appellant, was a debtor of the judgment debtor in an amount exceeding $50, and that he refused to apply the money in his hands to the satisfaction otf the judgment. The order of examination, based on these averments, directed Tremain and Lehfeldt, the defendant, to “appear before E. M. Levy, the commissioner appointed by me,” at a time and place stated, “to answer concerning the same.” Tremain appeared and testified he had agreed to lend Lehfeldt and his wife four thousand dollars to Construct a building on a lot in San Francisco. The Lehfeldts executed a note and mortgage on the property to secure the loan, and it was agreed the proceeds of the loan should be advanced in four installments of one thousand dollars each, when the

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frame of the building" was up, when the brown coat of plaster was on, when the building was completed, and thirty-five days thereafter. It was further agreed that all of the payments were to be made by checks drawn by the lender to the order of Lehfeldt and his wife, and by them indorsed to the order of J. W. Wright & Co., real estate agents in San Francisco. Wright & Co. were to use the checks to pay the building bills for Lehfeldt’s account. Pursuant to this agreement and coincident with the execution of the note and mortgage, Tremain drew, but did not sign, the checks. Lehfeldt and his wife immediately indorsed the checks to the order of Wright & Co. The first two checks were signed and delivered by Tremain at the appropriate times to Wright & Co. Wright notified Tremain “they had sold out the Lehfeldt property. Mr. Tremain said that he had paid two thousand dollars under the mortgage; that' he had still two thousand dollars that he was willing to pay,

provided he was in every way protected from all liability against everyone.”

Some days after hearing this evidence, the commissioner read to Tremain his proposed findings, and the latter stated that they were correct, “with certain exceptions, and should be amended to set out and show the Wright transaction; that Mr. Levy agreed to make these corrections, and thereafter, in the absence of Mr. Tremain he made corrections; that Mr. Tremain did not see the findings and report of Mr. Levy after they had been corrected.”