Buffalo Cycle Co. v. Todd & Hawley

McFARLAND, J.

—On motion of plaintiffs a judgment on the pleadings was rendered in their favor, and defendant appeals from the judgment.

It is averred in the complaint, in addition to the averments

[293]

of the partnership of plaintiffs, the incorporation of defendant, and other formal matters, that on and prior to June 1, 1895, defendant and one Percy Easton were partners, under the firm name of the San Diego Cycle Company, and engaged in certain described business; that on said day the partnership was dissolved, and defendant took possession of the assets, contracts, accounts, and other property of the partnership, and proceeded to close out the business. It is further averred that said Easton was indebted to plaintiffs on a certain promissory note and on a certain judgment, the amount due on both being $604.55, with interest, etc.; and that “in settlement of said demands, and of the said claims and indebtedness,” Easton made and delivered to plaintiffs the following order: —

“Messes. Todd and Hawley, composing the San Diego Cycle Company.

“Please pay to Withington and Carter, attorneys of the Buffalo Cycle Company, whatever sums may be due and payable to me thereafter from any contract or contracts or transactions had with you or either of you.

“ (Signed) Percy Easton.

“San Diego, California, July 22, 1895.”

And that at said last-mentioned date the said defendant accepted the said order, in writing as follows: —

“Accepted. Todd & Hawley.

“ G. M. Hawley, Treasurer.”

It is further averred that Withington and Carter had no interest in said order, that it was always the property of plaintiffs, and that they made a formal written assignment of the same to plaintiffs. It is further averred that thereafter defendant received to and for the use of Easton, from the business, contracts, and transactions mentioned in the order, large sums of money, in excess of said $604.55 and interest, and though often requested to do so, has refused to pay the same or any part thereof to plaintiffs. There is also an averment that, defendant had paid to Easton a sum of money largely in excess of plaintiffs’ claim.