Teats v. Caldwell

SHAW, J.

This is an appeal from a judgment of nonsuit rendered against plaintiff at the close of her evidence, and from an order of court denying her motion for a new trial.

The action is to recover the sum of six hundred and fifty dollars and is based upon the alleged fact that defendant’s intestate, Henry Palmer, was the agent of plaintiff, who resided in the east, and as such agent intrusted him with the purchase for her of real estate in California; that in June, 1907, having in his possession upwards of one thousand six hundred and fifty dollars of plaintiff’s money, he with said sum purchased for her a lot the price of which he represented to be one thousand six hundred and fifty dollars, whereas in truth and in fact the cost thereof was one thousand dollars only. The answer denied the alleged agency, or that said Palmer held said money as such agent for the purpose of investment on plaintiff’s account, and, in brief, denied all of the alleged fraudulent acts. The answer further alleged that the cause of action was barred by subdivision 4 of section 338 of the Code of Civil Procedure.

The evidence introduced tended to show that plaintiff, who lived in Chicago, met Palmer while on a visit to California in 1902, at which time he acted as her agent in the purchase of a

[208]

lot which he thereafter sold for her at a profit, retaining in his possession the proceeds of such sale until plaintiff, at his suggestion and relying upon his good faith in so advising her, purchased through him another lot. A number of letters written by Palmer to plaintiff were received in evidence for the purpose of showing the alleged relation. In October, 1906, after the sale of the first lot purchased for plaintiff, Palmer sent her a statement of her account, showing moneys received and disbursements made on her behalf and the balance in his hands, and wherein he said: "I shall try to handle the money you left in my care so that I shall win nicely for you. Pray God, in your prayers, that we may do the right always: better for others than we shall ask that they shall do for us. God be with you till we meet again.” In January, 1907, he made a further accounting by letter, showing further receipts of money collected on plaintiff’s account, which left a total in his hands of $1685.87. In this letter he said: "I am watching for a good investment for you; and I want a