Herrick v. Hodges

Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.

Suit brought to recover a sum of money alleged to have been collected by defendant of a firm of Towers & Pierce, in Humboldt County, the defendant acting as agent for the plaintiff, and which money the defendant refused to pay.

It seems defendant had a large claim on this firm, and was about going to Humboldt, from San Francisco, to collect it. • Plaintiff had a smaller claim, and the plaintiff and defendant agreed together that defendant should take plaintiff’s claim and treat it as his own in any suit to be brought for the collection of the debt, the plaintiff and defendant to share costs and expenses pro rata, but the defendant to make no charge for his personal services. The defendant sued on his claim and plaintiff’s together, and got judgment for the aggregate amount in his own name. Execution issued, and defendant bought in the entire property of defendants sold at execution sale under this joint judgment for less than the amount of the entire judgment. One Quick was appointed agent to take care of the property. It seems that the plaintiff knew and approved of these proceedings. It turned out that this property was involved in legal controversies in Humboldt County, so that it was lost to defendant and plaintiff, and that nothing was realized from these proceedings. Quick, the agent, was authorized to dispose of this property at private sale. While this property was in the hands of Quick, [433]defendant gave the plaintiff an order on R. H. Waller, Esq. of San Francisco, for nine hundred and twenty-five dollars, which would have been his proportion of the sum for which the property was bid in, if that property had been considered as cash to that amount. This order on Waller was in these words :

“ Mr. R. H. Waller :—You will please pay to A. P. Herrick, or order, nine hundred and twenty-five dollars, or any part thereof, as soon as it may be remitted to you by John Quick, to my credit, but with instructions from him that it is to apply on a claim that the said Herrick assigned over to me against Towers & Pierce. This is the only paper by which to show that he has a claim to the above moneys.

(Signed) Willard Hodges.”

The-Court charged the jury that, under the evidence adduced, Hodges’ purchase would raise a prima facie case that the five thousand four hundred and ninety dollars bid by Hodges for the property was its value, and that he would be liable to Herrick for his proportion of that amount.