Walker v. Baumeister

BEASLY, J.,

pro tem.

The plaintiffs owned an improved lot on London Street, in San Francisco, which they exchanged with McArthur Brothers, a firm of building contractors; for a lot on Twentieth Street in said city. The Twentieth Street lot was unimproved, and by the terms of the contract under, which the exchange was effected McArthur Brothers agreed to erect a seven-rcom dwelling-house thereon, and to convey it to the plaintiffs in exchange for their property free of all encumbrances except a two thousand five hundred dollar mortgage. Coffin & Company, a firm of real estate brokers, acted as the agents in effecting this exchange. Neither the McArthurs nor the plaintiffs had the money to pay for the erection of the building on the Twentieth Street lot, and Coffin & Company, through an employee of theirs named Woodfield, secured the money from the defendant Bernhardt H. Baumeister. Thereupon the plaintiffs conveyed their property to McArthur Brothers, and the latter in turn conveyed their Twentieth Street lot to the plaintiffs, and the plaintiffs executed to Baumeister and his wife, the other defendants, a promissory note for two thousand five hundred dollars and secured the same by their mortgage to Baumeister on said lot. Baumeister turned over to Coffin & Company, through Woodfield, his check for two thousand dollars. Six hundred and twenty-five dollars of this money Coffin & Company paid out as the building progressed to McArthur Brothers for erecting the same, and before the building was complete Coffin & Company became bankrupt, and the remainder of Baumeister’s money in their hands was found to be uncollectible. Thereupon Baumeister paid five hundred dollars additional to McArthur Brothers.

[152]

The trial court upon the submission of this cause found that the defendants had paid to plaintiffs the sum of $1,125 and no more. This finding was necessarily predicated upon the conclusion that Coffin

&

Company were the agents of Baumeister to hold and disburse the two thousand dollars represented by the cheek, because no money except the five hundred dollars above referred to was paid to the plaintiffs or for their use by Baumeister unless we regard as so paid the two thousand dollar check delivered to Coffin & Company. The finding that no more than $1,125 was paid by the defendants to the plaintiffs is of course disputed, and the ground of the dispute is a contention on the part of the defendants that Coffin & Company were not their agents, and that the finding to the contrary is not supported by the evidence.