Hodgkins v. Wright

TEMPLE, J.

The action is for money laid out and expended for the benefit of defendant and at his request. The complaint contains two counts. The first is for three thousand and eight dollars and sixty-eight cents paid to the Farmers’ and Merchants’ Bank September 20, 1894, for the use of defendant. The second cause of action is for money paid by defendant to the First National Bank of Los Angeles for the use of plaintiff, between the first day of December, 1893, and the first day of July, 1894.

Several defenses were interposed, upon all of which there was much controversy, but I do not find it necessary to consider more than one. Plaintiff had judgment, and the defendant appeals from the judgment and from the order refusing a new trial.

Among the defenses interposed was one that the defendant had compromised, settled, and paid the demand of plaintiff; that she had accepted certain real estate from him in payment, and had surrendered to him all the evidences of indebtedness which she held. In a separate defense he averred that the demand of plaintiff was secured by mortgage upon certain real estate, to wit, upon the property which in the other defense it was averred had been conveyed to her, and which she had accepted in full satisfaction.

The case was tried with the assistance of a jury, which re~

[690]

turned a special as well as a general verdict. No findings were made.

Eeferring especially to the defenses mentioned, the jury found as follows:

“3. Were the transfer's in evidence by defendant to plaintiff in September and October, 1893, followed by delivery of the notes formerly held by the bardes, intended by the parties as a settlement of Mrs. Hodgkins’ claims? A. No.....

“7: Were any deeds to real property given in September and October, 1893, by defendant to plaintiff intended as a mortgage or security for the indebtedness? -A. No.

“8. Was the conveyance of the seven lots in North Cucamonga, mentioned in the evidence, made to Mrs. Hodgkins for the purpose and with the intention that she should sell such property and apply the proceeds, as far as the same would go, in payment of the defendant’s indebtedness to her? A. Yes.”