Curtin v. Black Oak Development Co.

[2]

CHIPMAN, P. J.

Plaintiff commenced the action to recover from defendant the sum of five hundred dollars alleged to have been

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‘ advanced and loaned to defendant by plaintiff for its use and benefit.”

The cause was tried by the court and defendant had judgment for its costs. Findings of fact were waived by the respective parties. Plaintiff appeals from the judgment and has brought up the record of the evidence taken at the trial.

The following facts appeared: On December 6, 1907, the owners of the Black Oak group of mines in Tuolumne County agreed to sell the same to one S. A. Knapp for two hundred and two thousand five hundred dollars, to be paid before April 6, 1911, and among the conditions of the agreement was one which provided for the payment out of the purchase price, of all debts of the owners. On December 5, 1910, Charles E. Knox, now president of defendant corporation, obtained from said owners an extension until April 6, 1913, to pay said purchase price. The Black Oak Development Company was formed with Charles E. Knox as its president. On April 3, 1913, respondent paid into The First National Bank of Sonora the purchase price and a sum additional to pay the assumed interest covering the two years’ extension period, the amount paid being two hundred and twenty-seven thousand five hundred dollars. Appellant was made disbursing agent of these funds.

On August 17, 1906, the owners of the Black Oak group of mines in Tuolumne County executed to Hales & Symons, a corporation, a mortgage on said mines for ten thousand dollars and on the same day Thomas A. Fisher, who, at that time, had two mortgages on the same property, assigned both mortgages to said Hales & Symons as additional security for said loan, as he, Fisher, had signed the note to Hales & Symons for the owners of said mines. Hales & Symons afterward transferred these three mortgages to one G. B. Wilson of Philadelphia ; said G. B. Wilson died and these three mortgages were transferred by his heirs to his son, G. B. Wilson, Jr., and on October 9,1912, said G. B. Wilson, Jr., transferred these three mortgages to Black Oak Development Company, respondent herein.

Hales & Symons, while it held said three mortgages, employed F. P. Otis, an attorney at law, to bring, and he did bring, suit in the superior court of Tuolumne County to fore