Reyntiens v. J. W. Treadwell Realty Co.

HALL, J.

This is an appeal from a judgment and order denying appellants’ motion for a new trial.

The complaint is in the common form to recover the sum of $533.50, money had and received by defendants for the use and benefit of plaintiff.

The action was dismissed as to defendants Abrahamson Bros. & Co. and Joseph Baer before issue joined.

Appellants, besides denying the allegations of the complaint, set up two counterclaims aggregating the sum of $533.50, for

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which amount they prayed judgment against plaintiff. The court found all the issues in favor of plaintiff, and entered judgment accordingly.

As to the counterclaims we do not understand that appellants contend that the findings of the court as to them are not fully sustained by the evidence. Certainly no just cause appears for any such contention.

Appellants do contend, however, that the evidence does not support the findings made upon the issues made by the allegations of the complaint and the denials thereof, and also that the court should have sustained their motion for a nonsuit made at the close of the plaintiff’s case.

That the evidence shows that appellants had received and had in their possession the sum of $533.50, which in equity and good conscience belonged to plaintiff, we have no doubt, and in consequence were indebted to plaintiff in that amount for money had and received to the use of plaintiff.

The litigation grows out of a transaction involving an attempt upon the part of plaintiff to obtain a lease from Joseph Baer of a building which he was then erecting in San Francisco. Baer had orally authorized Abrahamson Bros. & Co. to procure a tenant for the building at a rental of five hundred and fifty dollars per month. The evidence of Abrahamson is to the effect that he authorized appellants, as sub-agents, to secure a tenant, upon an understanding to divide the commissions. The total commission would be five hundred and fifty dollars, or one month’s rental. J. W. Treadwell procured from plaintiff a written offer to take a lease for ten years at five hundred and fifty dollars per month, provided certain specified changes should be made in the plans of the building. The offer contained the provision that plaintiff would cause a satisfactory bond to be executed in the sum of five thousand dollars to secure the lessor for the term of the lease. Plaintiff, as appears by the writing, also delivered to Treadwell a check “for the sum of $100 and balance of $450 upon signing of lease as payment for the first month’s rent. ’ ’ Subsequently, upon the representation of Treadwell that Mr. Baer desired it as an evidence of good faith, plaintiff paid to appellants the additional four hundred and fifty dollars, and took therefor the following writing: “San Francisco, April, 1907. Received from R. F. R. Reynteins five hundred and fifty, no hundredths