Black v. Riley

HALL, J.

This is an appeal from a judgment in favor of plaintiff and the order of the court denying defendant’s motion for a new trial.

The action was brought to recover the sum of nine hundred and thirty dollars, alleged to have been wrongfully retained and converted to his own use, out of a sum of two thousand five hundred dollars, alleged to have been collected by defendant for and on behalf of plaintiff, as her attorney.

The answer is in substance and effect that, though defendant did collect the sum of two thousand five hundred dollars, only the sum of $1,366.51 was the property of plaintiff, and that the balance thereof, according to agreement between plaintiff and defendant, was the property of defendant, as and for his fee for services rendered to plaintiff.

The action was tried before a jury, and resulted in a verdict for the sum of nine hundred and thirty dollars in favor of plaintiff.

The general facts of the case are that plaintiff asserted a claim to certain moneys on deposit in three different banks in San. Francisco, standing on the books of said banks in the names of Sophia Moore and plaintiff. The moneys, to the amount of $13,611.18, had been deposited by Sophia Moore, who had since died.

Plaintiff employed defendant as her attorney in the matter, and he procured a settlement with the administrator of the estate of said Sophia Moore, whereby there was paid to plaintiff the sum of two thousand five hundred dollars in full settlement of her claim. This money was paid by check drawn to the order of plaintiff, but the check was retained by defendant until presented to the bank for payment, when plaintiff, for the purpose of procuring payment, wrote her name on the back thereof, at the direction of defendant, but without seeing or knowing the amount thereof, as she claimed, upon which it was presented to the bank by defendant, and the money placed upon the counter and at once taken into

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the possession of the defendant, who shortly afterward, on the same day, turned over to plaintiff the sum of $1,366.51, and gave her a receipt in full for his services in the matter. Such receipt, however, stated no amount.