Hillyer v. Eggers

KERRIGAN, J.

This is an appeal by the defendant from an adverse judgment in an action for the recovery of $730, claimed to have been unlawfully taken under execution.

[765]

In the early part of the year 1914 the Sequoia Motor Car Company gave in payment for legal services rendered to it its promissory note for three hundred dollars to its attorney, O. C. Pratt. Prior to its maturity the payee, for a valuable consideration, transferred it to the plaintiff. At its maturity it was unpaid. Subsequently H. J. Small became a judgment creditor of the company in the sum of three thousand dollars. It also appears from the record that Mrs. H. A. Gillis was indebted to the company in the sum of one thousand dollars upon a stock subscription, the indebtedness being evidenced by her promissory note, given, however, with the understanding that the note was not to be negotiated. Contrary to this agreement it was negotiated; and Mr. Henley C. Booth, attorney for both H. J. Small and Mrs. H. A. Gillis, wishing to find out who had possession of the note, communicated with plaintiff by telephone, telling him that he represented Mrs. Gillis, and asking him if he knew, where the note was. Plaintiff replied that he did not, but would try to find out and let Mr. Booth know. Later, having ascertained that the note was held by a Mr. W. W. Allen, plaintiff communicated with Booth, and negotiation ensued resulting in Booth agreeing to pay plaintiff the sum of $730 for it. The latter then purchased the note from Allen, paying him therefor the sum of $550, hoping apparently through the completion of the transaction with Booth to recoup in part the loss he had sustained by his purchase of the note given by the company to Pratt, the company being now insolvent.

About this time, according to the argument of the respondent, Booth appears to have conceived the idea of acquiring for Mrs. Gillis her note, and that the price to be paid for it should go to his other client, Small. Accordingly, he agreed with the plaintiff that the payment of the $730 for the note should be made in his, Booth’s, office at a certain time—harboring the intention, however, that at the moment of receiving the note from the plaintiff and tendering payment thereof the money should be seized in execution of Small’s judgment. This plan was carried out, so that when the plaintiff’s agent handed the note to Booth, the latter placed $730 in currency on the desk in front of him, and before the messenger of the plaintiff could pick it rip, a deputy of the defendant, who was waiting in the room