Carter v. Holt

SHAW, J.

The complaint shows that by means of fraud and false representations defendant Holt obtained from plaintiff the sum of $1,151.37; that he entered into a contract with an automobile company for the purchase of an automobile for the sum of $1,375, and of the money so fraudulently obtained from plaintiff he paid thereon $625; that thereafter, and before the filing of the complaint herein, Holt was arrested, charged with the embezzlement of said sum of money so procured from plaintiff; that he employed defendant Linney as attorney to defend him upon said charge of embezzlement, and to whom he assigned said contract for the purchase of the automobile upon which he had paid $625 of plaintiff’s money; “that said assignment was made without consideration and after knowledge by said Linney that said automobile had been purchased with plaintiff’s money and funds as aforesaid”; that the automobile is in the possession of Holt and Linney. In addition to general relief asked, the prayer of the complaint, so far as appellant is concerned, is that plaintiff be declared the owner of said contract and automobile to the extent of the application of plaintiff’s money in the purchase thereof so made by Holt.

[798]

The court, among other things, found that plaintiff was entitled to an equitable lien upon the automobile to the extent of $625 so invested therein, and that Linney held the car charged with such lien. Judgment followed, from which, and an order denying his motion for a new trial, Linney appeals.

Appellant’s first contention is that the complaint (to which no demurrer was interposed) fails to state facts sufficient to constitute a cause of action against him. This for two reasons : First, it is not alleged that title to the automobile passed to Holt, but that he merely held a contract in the form of a lease for its purchase. No ground is assigned for this contention and we perceive no reason why, in a proper case, a trust might not be impressed upon a contract or lease, as well as upon other property. Second, it is claimed the complaint fails to show that prior to Linney’s acquiring the automobile and contract of purchase he had knowledge of plaintiff’s rights therein. In the absence of a special demurrer, we think the allegation that the assignment was made to him by Holt without consideration and “after knowledge by said Linney that said automobile had been purchased with plaintiff’s money and funds as aforesaid,” was a sufficient showing of the fact. The words “as aforesaid” refer to the fraudulent acts of Holt by means whereof he obtained the money and invested it in the automobile; all of which, it is alleged, was known to Linney.