Johnston v. Burnett

JAMES, J.

This action was brought by plaintiff to recover the sum of $866.59, alleged to have been collected by defendant for the benefit of plaintiff and which defendant had refused to pay to plaintiff upon demand being made therefor. Prior to the year 1910 defendant, as an attorney at law, was employed by plaintiff to bring suit to enforce the collection of three promissory notes, each being for the principal sum of $2,000. After various proceedings had in the superior and supreme courts, judgment in favor of plaintiff was finally affirmed, nearly two years after suit was commenced. Defendant collected the amount due upon the judgment, which included, besides the principal sum of $6,000, interest amounting to about $1,100, together with costs. Of this sum he first applied $2,020.05 in extinguishment of an indebtedness owing by plaintiff to a certain banking institution, which he was authorized to do; then, after deducting, in satisfaction of his own demand for attorneys’ fees, the amount of $1,100, he remitted to plaintiff his check for the balance, plus $110 which had theretofore been advanced by plaintiff as costs. Accompanying this check was the following letter:

“Los Angeles, Cal., June 28th, 1910.

“Mr. J. S. Johnston, 624 I. W. Heilman Building,

Los Angeles, Cal.

“Dear Sir: I have at last, after nearly two years contest in court, succeeded in collecting the notes of Mrs. Blewett, which you acquired from W. H. Bates.

“The principal of the notes amounts to $6,000, and you advanced $110 toward the cost of the litigation. This amount I return to you as follows:

[499]

“Paid to Citizens National Bank, amount of your

note, secured by assignment of judgment to me. .$2020.05 “My check herewith............................ 4089.95

$6110.00

“Which cheek is given in full settlement of all matters between us. Your cancelled note is enclosed. Yours truly,

“F. W. BURNETT.”