Long v. Harrison

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MR. JUSTICE PLUMMER Delivered the Opinion of the Court.

Upon further consideration of this cause we are led to the conclusion that there is sufficient evidence set forth in the transcript to sustain the judgment, save and except as to the modifications hereinafter set forth. Portions of the opinion filed herein upon first hearing may properly be adopted as expressing our views.

The complaint in this action consisted of two counts, the first of which was for money had and received, the second being for work, labor and service done, and material furnished. During the trial the case was dismissed as to defendant Jessie Calzasia and judgment was rendered against the remaining defendants for the amounts set forth in the complaint. Defendant W. IT. Scheckert alone appeals.

The evidence produced by respondent in support of the first count of the complaint was to the effect that $250 of the $1250 therein named was assigned to him by Thomas 0. Knight, and that the interest of his wife, Matilda E. Long, in the remaining sum of $1,000, was also assigned to him; that respondent and his wife were induced to place in the hands of defendants Harrison and Scheckert the said sum of $1,000 by reason of representations made by them that they had a .lease upon certain mining claims, and that the said money would be placed in escrow and not used until a corporation was organized to develop the said mining claims, and that after said corporation was formed, said money would be used in the development of said claims; that said defendants did not have any lease upon said claims, nor did they, at any time organize a corporation; that instead of carrying out the purposes for which said money was placed in their hands, said defendants converted it to their own use, and failed and refused to repay the same to respondent and his wife.

The court found these facts to be true, and also found that the same false representations were made by said defendants to plaintiff’s assignor, Knight. While there may be some question as to whether the finding of the court that the defendants represented to plaintiff’s assignor Knight that they had a lease on any mining claims, we think there is sufficient evidence in the transcript to show that the defendants represented that the money would not

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