Palace Hardware Co. v. Smith

HAYNES, C.

The plaintiff, by its attorney, William H. Jordan, Esq., brought an action in the superior court against the defendant, upon two separate causes of action, the first of

[382]

which, amounting to $320.80, accrued to plaintiff directly, and the second cause of action, amounting to $105.73, accrued to the Pacific Refining and Roofing Company, and was by it assigned to said plaintiff and included in said action.

On October 20,1898, while said action was pending, Mr. D. C. Murphy, representing defendant’s attorney, Mr. Frank Sullivan, called upon plaintiff’s attorney and inquired what the figures would be for a settlement of said action. Plaintiff’s attorney thereupon called for the papers in said cause, and, taking out the complaint, looked at the prayer for judgment and saw the amount stated at $320.80, and thereupon said he would advise his client to settle for said sum and the costs, aggregating $10, and that if payment would "be made immediately he would advise a settlement at $330; that at the time of making said statement he had forgotten about said assigned claim for the sum of $105.73, and did not know that it was not included in the prayer, but supposed that said sum of $320.80 was plaintiff’s entire claim in said action; that afterwards, Mr. Murphy called upon plaintiff’s attorney with a check for said sum of $330, and requested a dismissal of said action and a substitution of attorneys, which requests Mr. Jordan complied with; that on October 25th he examined said complaint and found that said assigned cause of action was included therein, but was not included in the amount prayed for, and had not been settled, and immediately informed defendant’s attorney of the fact, and requested a correction of the error by a payment of said assigned claim, or if that were not done, he would repay the money received and take steps to set aside the settlement and restore the cause to the calendar. Defendant’s attorney having declined to do either, plaintiff’s attorney thereupon tendered to him the money received, and that tender being refused, also tendered it to the defendant personally, who also refused to receive it, and thereupon the plaintiff, after due notice, moved the court to vacate the judgment of dismissal which the defendant had caused to be entered, and to cancel the substitution of counsel which had been given, and to restore Mr. Jordan to his position as attorney for the plaintiff, and brought into court the money he had received from the defendant. Said motion was based upon the files and records in said cause, and upon affidavits, the substance of which is above stated.