McCormick-Ormand Co. v. Nofziger Brothers Lumber Co.

[243]

SHAW, J.

Action in form for money had and received. Judgment passed for plaintiff, from which, and an order denying its motion for a new trial, defendant prosecutes this appeal.

It is alleged in the complaint that on or about July 1, 1904, the defendant received the sum of $400 from the Lynn-Lewis Company, a corporation, to and for the use of plaintiff. This allegation is put in issue by specific denial contained in the answer.

Appellant, among other assignments of error, contends that the court not only failed to find upon this issue, but also insists that certain of the findings, without which the judgment has no support, are outside the issues. We are inclined to recognize both contentions as being correct.

The finding of the court necessary to a consideration of the question is, in effect, that Lynn-Lewis Company, plaintiff’s assignor, and the defendant entered into a tripartite agreement whereby the former should sell and transfer to the defendant certain notes and mortgages then owned by the Lynn-Lewis Company; that as a part of the consideration for such transfer and assignment, defendant promised and agreed with the Lynn-Lewis Company and plaintiff’s assignor that it would pay to such assignor the sum of $400, to be applied on certain indebtedness due to it from said Lynn-Lewis Company; that pursuant to said contract and agreement Lynn-Lewis Company did transfer and assign said notes and mortgages to a certain bank in accordance with a request made by defendant, who indorsed and guaranteed payment of the same; that plaintiff demanded payment, but defendant has failed to pay said sum, or any part thereof.

The action is predicated upon the theory that defendant had received money or property as, and presumably converted into, money which in fact belonged to plaintiff (2 Ency. of Pl.

&

Pr. 1016;

Kreutz

v.

Livingston,

15 Cal. 344;

Ehrman