Hammond Lumber Co. v. Weeks

CRAIG, Acting P. J.

The respondents were awarded judgment in an action of appellant against themselves and others,- and this is an appeal therefrom.

One W. S. Weeks contracted with respondents for the erection of a house and garage upon their property in the county of Los Angeles, and purchased from the appellant lumber company certain sash, doors, hardware and materials for use in said structures. Respondents made and executed to Weeks a deed of trust in the sum of $1250 as security for the payment of any amount for which he might become indebted through such purchases, and the same was delivered to and held by appellant until completion of the work. Respondent J. Pludow, being informed that his account had been satisfied, and that one S. C. Briggs had purchased the deed of trust, was desirous of verifying this report and, to quote his testimony: He “called up Hammond Lumber Company on the telephone and told them I was Pludow, the owner of that house, and I wanted to know, because I am going to make another

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payment to this contractor, if they are paid. They couldn’t answer me right away on the ’phone. They told me they would connect me with the trust department, which they did. A girl answered the ’phone then and she asked me what I wanted, and I explained to her that I wanted to know as far as their bills are concerned, because I wanted to make another payment to Weeks. They held me on the ’phone for fifteen minutes, and then they came back and said, ‘as far as we are concerned, we are all paid up; you can go ahead and pay Weeks whatever is necessary. ’ ”

Prior to this conversation Briggs accompanied Weeks to appellant’s offices, informed a bookkeeper that he was purchasing the deed of trust, and was advised that the balance due on the Pludow job was $825, which he paid; he had agreed to pay $1,050 for the security, and Weeks was therefore at the same time given a check for $225, whereupon appellant released it to the purchaser. Respondent, believing that appellant’s claim had been paid in full, also delivered to Weeks a check for the remainder concededly earned by the latter.

Thereafter the Lumber Company filed a lien against the property in question for the sum of $208.64, and subsequently instituted the present suit for its foreclosure. Upon the trial it was strenuously asserted by appellant’s witnesses that no member of its office force had received a telephone inquiry such as that to which respondent testified, or had given to any person the information stated. It appears that one Sherman, appellant’s accountant, had visited the property and reported to his employer as to the completion of the work and the amount remaining due it, but it was testified that at the time of the settlement with Briggs and Weeks this report had not reached the proper department so as to be entered in the account, and that as a matter of fact the books did not at the time of such settlement show its true status. A Miss Quirk testified that she had full charge of appellant’s trust or securities department, and that any inquiry as to the Weeks account would have come directly to her, but that she had received no call regarding the same; that under no circumstances would she have taken the responsibility of determining or giving information as to its condition, and that she did not do so; both this witness and Sherman swore