Scrivner v. Woodward

ANGELLOTTI, J.

On October 1, 1895, plaintiff, an attorney at law, executed to defendant his promissory note for

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five hundred dollars, and pledged to her, as collateral security for the payment thereof, two one-thousand-dollar gold bonds of the California and Nevada Railroad Company, belonging to him, and defendant delivered to him a writing signed by her, stating that she received the bonds as collateral security for such payment.

In January, 1896, defendant employed plaintiff to defend her in an action to which she was a party, then pending in court, and in August, 1896, orally agreed that, in consideration of the services rendered and to be rendered by him to her in said action, she would immediately cancel said note and return the same with the bonds to plaintiff.

Plaintiff performed all the conditions of said contract of employment, but defendant has never canceled the said note or returned it or the bonds to plaintiff, and has refused to make such return. Within a few days after August 27, 1897, plaintiff demanded of defendant the return to him of the note and bonds pursuant to said agreement.

On March 8, 1899, plaintiff commenced this action for fifteen hundred dollars damages, alleged to have been suffered by him by reason of defendant’s failure and refusal to return the two bonds. He recovered judgment for the sum of twelve hundred dollars and interest, and from that judgment and an order denying her motion for a new trial defendant appeals.

The foregoing statement of facts is substantially in accord with the material allegations of the complaint, and is fully sustained by findings of the trial court, which are unassailed by any specification of insufficiency.

Defendant, in her answer, after denying certain allegations of the complaint, alleged that plaintiff’s cause of action was barred by sections 338 and 339 of the Code of Civil Procedure. The court found that the action was not barred by the provisions of either section; but if this action be held to be an action for damages for breach of the oral contract of August;, 1896, it is manifest from the evidence that the finding as to section 339 cannot be upheld, the action not having been instituted until March 8, 1899. The services rendered by plaintiff prior to the making of such contract, and the undertaking to render further services, were a sufficient consideration for defendant’s promise to