Papeschi v. La Cava

STURTEVANT, J.

The plaintiffs commenced an action against the defendants to recover money. They were given judgment against one of the defendants and that defendant has appealed. They were refused judgment against the other defendants and from that portion of the judgment the plaintiffs have appealed.

The plaintiffs pleaded their claim in three separate counts. On the third count neither party introduced any evidence and no findings were made. The first count was framed as a common count for money had and received.

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The second count pleaded a written promise to pay. The defendants filed answers denying the allegations contained in each count and each defendant alleged that the plaintiffs rescinded the contract. Among others the court found, “That within two years last past, at the City and County of San Francisco, State of California, defendant G. Fracchia, originally sued here and sometimes known as S. Fracchia, became indebted to plaintiffs, in the sum of $600, for and on account of moneys had and received by said defendant for the use and benefit of plaintiffs, and which said sum said defendant in writing promised and agreed to pay to plaintiff; that although demand has been made on said defendant for the payment of said sum no part thereof has been paid.” The trial court also found that the plaintiffs never rescinded the said contract. There is no finding that Mary Rosina, as an individual or as executrix of the last will of her deceased husband, or that N. Y. La Cava did receive, or did not receive, any moneys. The uncontroverted evidence was to the effect that Rosa Papeschi paid to the defendant La Cava, as a deposit on a purported contract to purchase real estate, the sum of $600 and of that sum the defendant La Cava paid to the defendant Fracchia $300. There is no evidence in the record that either of those defendants does not now hold the moneys so received; or that either of said defendants has legally parted with any of the moneys so received.

In accordance with the finding above quoted, the trial court rendered judgment against the defendant Fracchia in the sum of $600. In doing so the court did not err. The defendant had received $600. The witnesses so testified; but they attempted to show that Fracchia then made a payment to La Cava. He had no authority to do so. The payment did not relieve him of responsibility.