Ackley v. Prime

THE COURT.

This is an action to recover upon three assigned claims for money had and received, each claim being made the subject of a separate count in the complaint, the first of which was dismissed. The second and third counts are based upon allegations to the effect that defendant received from Samuel R. Allan and Charles Hammer, respectively, the sums of $365.55 and $477.55 to and for. the use of the Morton Hospital, a corporation, but refused to pay any part thereof to said corporation or to plaintiff. The trial resulted in a judgment in favor of plaintiff and the defendant appeals, the sole ground urged for reversal being that the evidence fails to establish a cause of action for money had and received; that defendant’s liability, if any, was upon a written contract of guaranty, and that plaintiff’s action should have been founded thereon.

It appears that defendant, as attorney for Allan and Hammer, instituted two actions in their behalf to recover damages from the Remington Typewriter Company on account of personal injuries sustained by them in an automobile collision. The injuries necessitated hospital treatment, which was furnished by the Morton Hospital under the following circumstances, as the same were established by the testimony of three members of the hospital staff, namely Drs. ' Gardner and Morton, and Edith Barnett, the superintendent : Defendant, after explaining the circumstances under which the men were injured, and that as their attorney he had instituted actions for the recovery of damages, agreed that if the hospital management would receive the men and furnish them with necessary hospitalization he would pay the cost thereof out of the money received in -said lawsuits, and would be “personally responsible” for such payment. Under such agreement the men were admitted to the hospital and after being treated there for a short- time Dr. Morton requested defendant to “confirm” his agreement in writing, which the defendant did, the letter- to that effect reading as follows:

[537]

“March 21st, 1924.

“Supt. Morton Hospital,

“1055 Pine Street,

“San Francisco, Calif.

“Dear Sir: You have in your hospital as patients, Samuel R. Allen and Charles Hammer, both suffering from injuries as a result of automobile accidents and said cases are under the personal supervision of Doctor George Gardner. Actions for damages in each of the foregoing cases have been filed against alleged persons causing the injuries, and I am the attorney of record representing the persons herein named. As these cases were placed in your hospital as a result of my solicitation, I wish by this letter to guarantee to your institution the payment of the necessary indebtedness in the case and treatment of both Allen and Hammer and services in connection therewith. Both of these cases are being defended by Insurance Companies, as a result of Policies for Liability issued to the Owners of the Automobiles causing the injuries.