Anderson v. Julius Levin Co.

ST. SURE, J.

Appeal from judgment of nonsuit.

The complaint stated a cause for money had and received in three counts, the first count for five thousand dollars, from W. S. Wright, the second for two thousand

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dollars, from W. S. Wright, and the third for money had and received from plaintiffs in the sum of three thousand dollars. Under the 'first count an assignment to plaintiffs of Wright’s claim is set out. Prayer is for five thousand dollars, with interest from November 7, 1919.

Defendant, Wilton Securities Company, sued as Julius Levin Company, answered denying all the allegations of the complaint, and alleged that none of the counts stated a cause of action against defendant.

The facts, briefly stated, show that on November 3, 1919, W. S. Wright, plaintiffs’ assignor here, entered into an agreement of lease with Julius Levin Company for certain premises on Van Ness Avenue, San Francisco, at a stipulated rental. The lease, as consideration for its execution, contained a provision for the payment, simultaneously with execution of the lease, of the sum of five thousand dollars. It was later provided that if the provisions of the lease were fully performed, the sum so paid might be applied in specified amounts on the last twenty-three months of the five-year term. There was no provision in the lease • against subletting, and a few days thereafter Wright entered into an agreement of sublease of part of the same premises, with the plaintiffs here. A provision for the payment of three thousand dollars for the execution of the sublease was contained therein, and as matter of fact the money so paid was paid directly to the Julius Levin Company by check of the plaintiffs, who paid such sum at defendant’s office in company with Wright. The Levin Company had already received two thousand five hundred dollars from Wright, and the three thousand dollars thus paid by plaintiffs was received by them on the Wright account, on which, being overpaid by reason of the three thousand dollars payment, they returned five hundred dollars to Wright. Shortly after the leases above mentioned were, entered into, a corporation was formed by name Wright Motor Company, to which Wright made assignment of the lease and all rights thereunder. Business grew steadily worse, and the company later made an assignment for the benefit of creditors in which Wright, then owner of all the