Smith v. Farmers' and Merchants' Bank

BUCKLES, J.

This is an appeal from the judgment dismissing the action and the order sustaining the demurrer. The complaint alleges: That between January 14, 1904, and March 3, 1904, the plaintiff and forty-four others delivered to one A. G. McKerlie certain milk and cream, the property of plaintiff and the other forty-four persons, upon an agreement that said McKerlie would make the same into butter for said persons, and as their agent market the butter for them, receive the proceeds thereof, retain two cents on every pound of such butter, and pay over to such persons “to each person that portion of the whole proceeds of sales which the quantity of butter made from the milk or cream delivered by such person bear to the quantity made from that delivered by all such persons.” That said McKerlie received the milk and cream delivered to him and made the same into butter except about

[379]

twenty per cent thereof, and sold the butter for said persons, and also the twenty per cent of cream and milk. The complaint then proceeds: ‘ ‘ That, between said two dates, defendant herein, well knowing that said A. G. McKerlie held said proceeds of sales mentioned in paragraph 3 hereof solely for and as agent of said persons hereinafter mentioned and solely for the purpose of returning the same to said persons, and well knowing the said proceeds of sale's were property of the said persons, and well knowing all the facts and matters alleged and set forth in paragraph 2 and 3 hereof, received from said A. G. McKerlie, agent as aforesaid, after said A. G. McKerlie had fully taken out and appropriated his said agreed two cents for each pound of butter made, and fully taken out therefrom all expenses of receiving and marketing all cream sold, a portion of said proceeds, amounting, as the plaintiff is informed and believes and upon such information and belief alleges, to the sum of sixteen hundred and fifty dollars ($1650). That since receiving the same said defendant has retained, held, and kept said sum and, though requested so to do by said persons and by plaintiff, has refused, and still refuses, to pay the same or any part thereof to said persons or to plaintiff. Said sum so received by defendant was had and received by defendant for the use and benefit of the persons hereinafter named. ’ ’ Alleges nonpayment by McKerlie to plaintiff or the other said persons, and that he never returned to plaintiff and such persons, or any of them, any part of' the proceeds of said butter, and that the same is due. Alleges assignment to plaintiff of the claims of the other persons named, with the amount of cream and milk furnished by each, and the amount of money due to each from the butter and cream sold by Mc-Kerlie. Alleges that defendant received “about 165/190 of the amount ($1,908.26) and portion of said proceeds of sales belonging to and agreed to be returned to each of said persons by said A. G. McKerlie, agent, as aforesaid.”