National Cycle Manufacturing Co. v. San Diego Cycle Co.

TEMPLE, J.

The first count in the complaint is to recover a balance alleged to be due on an account. The second is for money had and received. In the third count it is charged that the defendants, other than the San Diego Cycle Company, promised in writing to pay the amount due plaintiff upon the accounts alluded to and described in the first two counts.

[336]

Percy Easton did not answer. The other two defendants answered, denying any indebtedness, and also pleaded the statute' of limitations. They show that Percy Easton and Todd & Hawley entered into a contract to deal in bicycles, under the name of the San Diego Cycle Company. Todd & Hawley was a corporation, the name of which was afterwards changed to the Hawley Hardware Company. By the terms of the agreement each party to it—that is, Percy Easton on one part, and the corporation on the other—could furnish wheels to be sold by the partnership, if such it was. The profits made upon the sale of such wheels would belong to the partnership, but the party furnishing the wheels was to be held for the price, and was, of course, to receive that much of the proceeds of sale. It was expressly agreed that the partnership was not to be responsible for the purchase price. Apparently, each partner had been the agent of one or more firms of manufacturers, and the expectation was, that they would continue to hold such agencies individually, and the combine was simply for the purpose of making sales. Easton was agent for the plaintiff, and after the partnership continued to buy goods from plaintiff in his own name. Defendants admit, however, that between the twenty-third day of February, 1895, and the twenty-seventh day of May, of the same year, the partnership purchased from plaintiff goods to the extent of $1,119.84, which it claims to have paid for. It denies purchasing any other goods from plaintiff. If other goods were purchased, its contention is, that such purchase was by Percy Easton, and that he alone is responsible. It also pleaded the statute of limitations to the entire demand.

The complaint avers that all the goods were sold and delivered to the partnership, but the court finds that in 1894 the plaintiff sold and delivered to Percy Easton goods to the amount of $5,137.50, and on and after October, 1894, up to the twenty-second day of May, 1895, to the partnership, goods of the value of $1,320.84. It was also found'that on the first day of June, 1895, Percy Easton turned over to Todd & Hawley certain contracts, liens, and promissory notes, payable to Percy Easton, together with the “entire assets of the said San Diego Cycle Company and Percy Easton, to collect, so far as possible, said notes and contracts so delivered as aforesaid, and to apply the amounts so collected on the indebtedness of the said San