Meddaugh v. Stroup

PLUMMER, J.

The findings of the court in this action are to the effect that within two years preceding the commencement thereof the defendant became, and ever since has been, and now is indebted to the plaintiff in the sum of $1182.05, as and for money had and received by the defendant from the plaintiff to and for the use and benefit of the plaintiff. That before the commencement of this action the plaintiff demanded the return of said sum, but that the defendant has neglected, failed and refused to return or pay the same, or any part thereof, to the plaintiff,

[305]

and that there is now due to the plaintiff from the defendant the sum of $1182.05. Judgment was entered in accordance with the findings. From this judgment the defendant appeals.

The basis of the appeal is the alleged insufficiency of the evidence to support the findings to which we have just referred.

The record shows that during all the times mentioned in the complaint the plaintiff was the owner of a certain cafe in the town of San Andreas, known as and called the “Meadow Lark Cafe”; that on or about November 4, 1928, the plaintiff left San Andreas and entered into a hospital for treatment, and remained away until about the 4th of February, 1929; that during the absence of the plaintiff from the town of San Andreas, the defendant took charge and supervision of the money received from the business conducted at the cafe, depositing the cash in a bank at San Andreas and paying bills. During this time it is alleged that the defendant received and converted to her own use the amount of moneys belonging to the plaintiff.

The record further shows that the defendant, during the period referred to, resided with a friend in the city of Stockton, and was accustomed to drive to San Andreas two or three times a week and collect the moneys received from patrons of the cafe. There is testimony in the record to the effect that on some of the trips referred to the defendant exhibited and spoke of moneys in her possession upon her return to Stockton, as being receipts from the cafe. The record further shows that during the period referred to there were some three or four persons employed in the cafe, spoken of in the testimony as a “restaurant”; that the money taken in was placed in a cash register and rung up as received. It appears that a witness by the name of Irene Bible Wise was accustomed to take the money out of the cash register at the close of each day’s business and secrete or place the same in an upper room used as a bedroom of the building in which the cafe was located; that whenever the defendant arrived at San Andreas this money would be turned over to her. It does not appear that this money was counted by the defendant when received, or any receipt thereof given by her to the witness Wise. Practically the whole argument of the appellant is devoted to the testimony