Edwards v. Gear

LENNON, P. J.

Lewis S. Gear, the defendant, gave his note on May 13, 1909, to Wilkie L. Edwards, who transferred the note to his sister, Lulu E. Chase, and his brother, Le Roy M. Edwards. Le Roy Edwards sent the note to the firm of Weinmann, Wood & Cunha, of San Francisco, for collection, and it was assigned to William F. Herron, a clerk in their office, solely for the purpose of collection. Suit was commenced in 1910 in the name of William F. Herron against Gear. Judgment went against Gear for the full amount of the note. Gear appealed and pending the appeal offers of settlement by Gear were referred to Edwards and by him refused.

While the appeal was pending Gear and Herron met and entered into an agreement of settlement of the case on April 30, 1914, without the knowledge or consent of Edwards, Lulu Chase, or the counsel on either side. At the time of the settlement the judgment of the lower court, together with interest and costs, had grown to a sum in excess of three thousand dollars. Gear settled with Herron for one thousand dollars, but did not report the settlement or pay any of the proceeds thereof to Edwards and Chase, the owners of the note. The agreement of settlement was not placed of record. Herron appeared on November 20, 1914, before this court and argued the case of Herron

v.

Gear, which seven months before had been settled. Gear appeared at the same time by his attorney, but no intimation was given that the case had been previously settled. The judgment was affirmed. On March 12, 1915, Chase and Edwards, having learned of the settlement, commenced an action to set aside the same upon the ground that it was procured and executed through the joint fraud of Herron and Gear. Injunctive relief was also sought by the complaint in the action to enjoin the satisfaction of the

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judgment in the case. The court below rendered and entered judgment for the plaintiffs, from which the defendant Lewis S. Gear and the defendants Ada P. Gear and Anna P. Linnell, who were sureties on the appeal bond in the original case, have appealed.

The only point made in support of the appeal worthy of discussion is the insufficiency of the evidence to support the judgment. In this behalf it is conceded' that if the evidence shows that Gear knew, prior to his attempted settlement with Herron, of the judgment that the plaintiffs were the actual owners of the note and that Herron held it only for the purpose of collection, then Gear’s settlement with Herron was a fraud upon the plaintiffs and the judgment was proper.