Marshall v. Swaim

THOMPSON (IRA F.), J.

The defendant was the wife of Dr. Clement Swaim, who owned a residence in Mexico City which he had been endeavoring to sell for two or three years prior to July 9, 1925. On the date mentioned the nego-

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tiations had reached the point where he and his wife, the defendant, signed a special power of attorney authorizing one Charles F. Pettijohn to sign and carry into effect a contract for the exchange of the dwelling for an orange grove in California. The exchange was actually consummated in Mexico on August 7, 1925. The Mexico City property was leased and on August 12th the tenant purchased a draft in the sum of $1500, to cover the rental due for the six months’ period commencing on August 15, 1925, and forwarded it to the residence of Dr. Swaim. It arrived at its destination on August 17, 1925, and the defendant indorsed the draft and used the proceeds for various purposes. The agreement for exchange of properties contains the following paragraph: “Third: Both deponents declare that the price of residence number 47 of Marsella Street is that of thirty thousand dollars and that the lands and shares together also are valued at thirty thousand dollars and consequently through the permutation (exchange) of the lands and shares for the house, the respective owners are fully compensated, and there being no claim for any reason whatsoever, they mutually acknowledge payment observing (the fact) that the rent for said residence covering rental of Mr. Conway until today belongs to Mr. Swaim and that commencing tomorrow to Mr. Marshall

ivith right of reimbursement

should they have been paid otherwise.” The plaintiff commenced this action, the one count being for money had and received and the other being based upon an assignment from Dr. Clement Swaim to the plaintiff of his claim against the defendant. The trial court rendered its judgment in favor of the plaintiff in the sum of $1500 and this appeal is from that judgment.

It is the appellant’s contention that by the terms of the agreement, the material portion of which we have already quoted, the respondent’s right of action was one for reimbursement from Dr. Clement Swaim, he being the owner in fact of the residence as his separate property. Let us observe, however, at the outset, that the language of the agreement is such as to refer to the reimbursement to Marshall of rentals which might have been paid to him prior to the execution of the agreement, a very logical and wise precaution under the circumstances of its execution by an attorney in fact separated by a considerable distance from his principal.