Mathieson v. Wallace

NOURSE, P. J.

Plaintiff súed upon a rejected claim for money had and received. The cause was tried without a jury and plaintiff had judgment from which defendant has appealed on typewritten transcripts.

Plaintiff’s former husband, Captain Mathieson, died May 17, 1919. He was then a member in good standing of the San Francisco Bar Pilots Benevolent Association and had paid for such membership the sum of $3,500. On July 18, 1919, Captain Heally purchased Captain Mathieson’s membership by paying to the association a like sum of $3,500. On July 20, 1919, Captain John W. Wallace, who was the secretary and general manager of the association, drew from the funds of the association the sum of $3,500 belonging to the widow of Captain Mathieson and deposited that sum to

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his own account. From that date until the day of his death on July 20, 1929, Captain Wallace, by both oral and written word, fraudulently concealed this fact from plaintiff, assured her that the sum was held for her by the association, falsely informed her that it could not be paid because of litigation, urged her to trust implicitly in him for the earliest possible settlement, and, to further deceive her and keep her from approaching the association, he paid her regularly from December 15, 1919, to June 15, 1929, semiannual interest at the rate of seven per cent a year.

The claim presented to the estate was in the simple form of one for money had and received. This was done upon the express stipulation of the parties to avoid the unpleasant publicity which might arise from open charges of fraud against the accused. Upon the rejection of the claim this action was instituted against the pilots association and the estate jointly, but was voluntarily dismissed as to the association.

Appellant raised four points which we may consider in order. (1) That the trial court erred in permitting the claimant to testify as to facts occurring prior to the death of Captain Wallace. We may assume for the purpose of this opinion that this was error, but it does not call for a reversal because, first, there is ample evidence to sustain all the findings independent of the evidence of this witness, and second, the evidence was admitted over objection but subject to a motion to strike out and 'such a motion was not made. For this reason this objection is deemed waived.