Foster v. Los Angeles Trust & Savings Bank

JAMES, J.

This action was brought to recover the sum of $840' and interest. The gist of the claim of the plaintiff was that this money had been deposited with the defendant by a third party for his benefit, and that conditions precedent having been satisfied and demand made, plaintiff was entitled to collect from the defendant the sum mentioned. Answer was filed to the complaint and among the defenses alleged was that of the bar of the statute of limitations. The case came on for trial and before any witnesses were examined, defendant asked and was allowed to withdraw its plea of the statute of limitations. Thereupon, plaintiff being called as a witness in his own behalf, defendant objected to the introduction of any evidence on the ground that plaintiff’s complaint failed to state sufficient facts to constitute a cause of action. This objection was sustained and the judgment of dismissal, from which this appeal is taken, followed.

[461]

It will be necessary to a proper understanding of the legal question presented to state more particularly the facts relied upon by plaintiff to sustain his suit, as the same are expressed in the complaint. In March, 1907, the plaintiff and A. W. McCready entered into a contract executory in form as to both parties, by which McCready purchased from the plaintiff ten motor cars, to be thereafter shipped from St. Louis, Missouri. The cars were to cost McCready in Los Angeles two thousand eight hundred dollars each. One ear was to be shipped immediately oh the' making of the agreement and the remainder, in lots of three, were to be shipped in March, April, and June, respectively, of the same year. McCready deposited with the defendant on account of the purchase and for plaintiff’s benefit the sum of two thousand eight hundred dollars, which the defendant was instructed to pay over to the plaintiff in installments of $280 for each car as the same was delivered. In May of the same year three of the cars contracted for were delivered to McCready and were paid for in full by McCready. Thereupon McCready and the plaintiff mutually released one another as to the sale and purchase of four of the ears referred to in the contract, and agreed further that McCready might draw down the sum of $1,960 of the two thousand eight hundred dollars deposit. The defendant was advised of this change in the agreement of the parties by letter in the following form: