United Casting Co. v. Duncan

WASTE, P. J.

Plaintiff, the appellant here, brought this action, alleging the defendant to be indebted to it for steel, iron work, and materials, for which defendant agreed to pay the sum of $2,296.15, with interest. As a separate cause of action it pleaded an account stated for the same amount. Defendant, by his answer, admitted that plaintiff sold the goods, wares, and merchandise, alleging that they were sold, not to defendant, but to defendant and one C. L. Powell, who were, at the time of such sales, doing business as partners together in the building and completing of sewer contracts, and that all of the materials were used by the partnership in said work, and for their joint benefit, all of which was well known to the plaintiff at the time, and, further, that the entire claim of plaintiff with interest and costs was paid on or about the eighteenth day of February, 1916, which date was long after the suit brought, by receiving property of defendant more than sufficient to pay the same.

By way of cross-complaint, the gist of which is here given, defendant further alleged that, coincident with the commencement of this action, plaintiff, in order to secure the claim sued upon here, caused an attachment to be issued against him, and levied oh a trenching machine, the property of the partnership; that later the Los Angeles Lime Company, a corporation, in another suit against him, caused to be levied a second attachment against said machine to secure

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to it the payment of a claim, amounting to $1,226.12, with interest and costs, which attachment was made subject to the attachment of the plaintiff in this action; that said machine was worth the sum of seven thousand five hundred dollars; that Harper & Reynolds Company, a corporation, holding a judgment against defendant in the sum of $272.31 and costs, caused an execution to be levied on the trenching-machine, subject to the two prior attachments, and that the plaintiff purchased the same at the resulting execution sale on February 18, 1916 (the date on which it was alleged the claim, herein sued upon, was paid), due notice of which sale was given by the sheriff, for the sum of $288.65, and took possession thereof; that at the execution sale plaintiff and the Los Angeles Lime Company conspired together for the purpose of hindering and delaying defendant from purchasing the machine at said sale, and from securing other persons to bid thereon, all for the purpose of cheating and defrauding the partnership out of their property; that under said agreement the Los Angeles Lime Company and the plaintiff each released its attachment against the machine, and plaintiff secretly, and without giving defendant an opportunity to repay plaintiff the amount it paid therefor, sold it to parties unknown to defendant for the sum of four thousand five hundred dollars, but did not satisfy the claim of the Los Angeles Lime Company, or its claim against defendant; that by reason of the purchase and sale of the trenching-machine, plaintiff has ample funds in its hands, and more than sufficient to pay itself, and the claim of the Los Angeles Lime Company; that because of the acts of plaintiff, as stated, defendant, and his partner, have been defrauded out of their property and damaged thereby in the amount of seven thousand five hundred dollars. Defendant’s prayer is that plaintiff be given judgment for the amount sought in this action, less the amount of $223.37, alleged to have been paid thereon, and that defendant have judgment against plaintiff, for the difference between the claim of plaintiff and the amount for which it is alleged plaintiff sold the machine. After its general demurrer to this cross-complaint overruled, the plaintiff answered, specifically denying all its allegations.