A. F. Sharpleigh Hardware Co. v. Knippenberg

HAYNES, C.

Appeal from a judgment rendered upon demurrer to the third amended complaint.

The action is upon an alleged contract between the plaintiff and defendant Knippenberg, and a bond executed by both defendants to the plaintiff to secure the performance of said contract by Knippenberg.

The defendants demurred severally, for want of facts sufficient to constitute a cause of action, and for uncertainty and ambiguity. The demurrer being sustained, the plaintiff declined to further amend its complaint.

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It is alleged that in June, 1895, the plaintiff and Knippenberg entered into an agreement, whereby the plaintiff appointed Knippenberg its agent at the city of Los Angeles to represent the plaintiff for the purpose of handling its goods which it might from time to time ship to him “ to be sold by the said Knippenberg, as the agent of the plaintiff, upon such terms and conditions as might from time to time be agreed upon by the said plaintiff and the said Knippenberg ”; that Knippenberg should keep a strict account, and make reports, “ as often as required by the plaintiff, of all goods received, and all sales, leases, rentals made, and all moneys which might be received” therefrom, and of all moneys expended in the conduct of the business, and would pay over all moneys properly belonging to the plaintiff.

A copy of a bond executed by Knippenberg as principal, and defendant Kregelo as surety, is attached to the complaint and made part thereof, which bond is conditioned for the faithful performance by Knippenberg of his said contract, and the payment of all moneys that may become due and payable to the plaintiff.

The complaint further alleges that after the execution and delivery of said bond the plaintiff delivered to Knippenberg, as such agent of the plaintiff, “goods, consisting of bicycles and bicycle sundries, belonging to the plaintiff, aggregating in value the sum of $4,090.37, and the said Will Knippenberg has come into possession of such goods to the value as aforesaid, as such agent as aforesaid; and plaintiff is informed and believes, and upon such information and belief avers, that the said Will Knippenberg, while acting as such agent of plaintiff, sold and-disposed of all of said goods which were delivered by the plaintiff to said Will Knippenberg under the terms of said contract; and the said Will Knippenberg has collected and received upon the sale of said goods the sum of $4,090.37, or thereabouts, out of which sum the said Will Knippenberg has paid all the expenses connected with the sale of said goods, and the amount due and payable to him, the said Will Knippenberg, for his said services as said agent aforesaid, making, in the aggregate, the sum of $2,195.02; that there remains a balance of $1,895.35 due of said sum of $4,090.37 in the hands of said Will Knippenberg, the property of plaintiff, which the said Will Knippenberg wrongfully retains, and refuses to pay over to the plaintiff; and the said Will Knippenberg is