Keller v. Hicks

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action to recover the amount of certain county warrants or orders drawn by the County Auditor upon the County Treasurer of Yuba County in favor of W. F. Hicks & Co. The complaint avers that the defendants, Hicks, Magruder, Addington, and Mrs. Laird (now Mrs. Carr), were partners, under the name of W. F. Hicks & Co., and as such printed the delinquent tax list of Yuba County for the year 1858; that two warrants, or orders, were issued to them therefor, the following being a copy of one of them:

“ Marysville, December 24th, 1858.

“ Warrant Wo. 712.—To the Treasurer of Yuba County : Pay to W. F. Hicks & Co., or order, the sum of nine hundred and sixty-five dollars for services as County Printer.

“ Yuba County Treasury Warrant for $965.

“ W. H. Wickersham, County Auditor.”

That January 2d, 1859, Hicks & Co., for a good and valuable con[461]sideration paid them by the defendant Eelton, indorsed and delivered the warrants to him; that Felton, on the twelfth day of January, 1859, sold and delivered the warrants to the plaintiff for the sum of nine hundred and sixty-five dollars, paid him by one Smith, out of plaintiff’s money; that the warrants were not paid, and he commenced an action against the County Treasurer to compel their payment, and upon appeal to this Court it was decided that the warrants were illegally drawn and therefore void (Keller v. Hyde, 20 Cal. 593), and that judgment was accordingly rendered against him on the first day of September, 1862, which was the first knowledge he had of the facts on which the invalidity of the warrants was founded, and of the fraud perpetrated upon him; that the defendants represented to him that they were just and valid claims against the county, upon which representation he purchased the warrants and paid Felton the sum of nine hundred and sixty-five dollars; that he has demanded payment of the defendants which they have refused. Then follows a count in which the warrants are counted on similar to promissory notes or bills of exchange under the old forms, followed by a count in assumpsit for nine hundred and sixty-five dollars, for money had and received, the promise in which is laid as of January 12th, 1858.

To this complaint Felton filed his separate demurrer, and the other defendants a joint demurrer, upon the following grounds: 1st, misjoinder of defendants; 2d, that several causes of action were improperly united; 3d, that it is ambiguous and uncertain; 4th, that the cause of action in the last count is barred by the Statute of Limitations; 5th, that the complaint does not state facts sufficient to constitute a cause of action. The Court sustained the demurrer, and allowed the plaintiff ten days time in which to amend his complaint. Failing to amend within the time, a final judgment was rendered for the defendants, from which he appeals.