Zuck v. Culp

California Supreme Court Jul 15, 1881 No. No. 7,079Published

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Holding. The court held that funds deposited with a firm to be kept until demanded constitute an express trust, meaning the statute of limitations does not begin to run until a demand for the funds is made. Furthermore, the court affirmed the trial court's findings of fact, noting that conflicting testimony between witnesses creates a substantial conflict in evidence that the appellate court will not disturb.

Issues

Whether the statute of limitations bars a claim for funds deposited in trust when no demand was made until shortly before the filing of the cross-complaint.
Whether the appellate court should disturb trial court findings of fact when there is a substantial conflict in the evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It was for the Court below to determine the credibility of each witness, by whomsoever he might be called to the stand.”

Synopsis

Appeal from a judgment for the defendant and an order denying a new trial in the Second District Court, County of Santa Clara. Belden, J.

The action was by the plaintiff, as surviving partner of the firm of Zuck & Hoover, to recover a balance alleged to be due upon an account stated. The plaintiff being called by the defendant, testified that the one thousand six hundred dollars referred to in the opinion had been charged in the accounts of the firm against the defendant for services in organizing the corporation referred to, and further testified, on cross-examination, that by agreement with the defendant, the firm were to receive from the defendant, for their services in this particular, one thousand and fifty dollars and fifty shares of stock. The defendant testified that he had no agreement with the firm at all, but with Hoover only, and that under the agreement the latter was to receive fifty shares of stock in full of all his services, and further, to prove this fact, he read in evidence the account stated between Culp and Hoover referred to in the opinion, in which account was the following credit in favor of Hoover: “By amount paid Zuck and Hoover commissions on sales of P. T. M. Co.’s stock due from Hoover, $1,200”—the P. T. M. Co. being the cor-, poration referred to.

The Court: The second finding of the trial Court reads as follows:

“As to the cause of action of defendant against plaintiff, set forth in the counter-claim of defendant for one thousand six hundred dollars, which counter-claim is set forth in the subdivision of defendant’s ‘ answer and cross-complaint,’ designated as II., and the amendment thereto filed at the trial, the Court finds the following to be the facts, viz.: That from the year A. D. 1871, until the 30th day of June, A. D. 1874, there existed a firm or partnership, under the name and style of Zuck & Hoover, which said partnership consisted of J. C. Zuck, the plaintiff, and one W. L. Hoover; that on the 30th day of June, A. d. 1874, the said W. L. Hoover died, and that ever since then the plaintiff has been the sole surviving partner of said firm; that for a long period of time before the death of said Hoover the said firm of Zuck & Hoover were the agents, attorneys, and bankers of the defendant, J. D. Culp; that at various times before the death of said W. L. Hoover, the defendant deposited with the said firm of Zuck & Hoover large sums of money, largely exceeding in all the sum of one thousand six hundred dollars, in trust, to keep for the defendant until demanded; and that said firm promised so to keep said moneys in trust for said Culp; that said firm, without the knowledge or consent of defendant, appropriated the sum of one thousand six hundred dollars, deposited with them by defendant as aforesaid; now, claiming that said sum was due to them as part compensation.for services pretended to have been rendered to defendant in organizing and incorporating a certain corporation in which defendant was interested; that no such services were ever rendered by said firm to said defendant; and that said firm had no right to appropriate the said sum of one thousand six hundred dollars, or any part thereof, out of the money, so deposited with them as aforesaid, and that defendant never consented thereto, and that no part of said sum of one thousand six hundred dollars has ever been paid to defendant. The defendant never demanded said sum of said firm, or of plaintiff, the said surviving partner, until within a year before the filing of his said ‘answer and cross-complaint;’ that at the time of such demand plaint[145]iff repudiated said trust, and refused and still refuses to pay defendant the said sum of one thousand six hundred dollars or any part thereof; that the said counter-claim arose out of and was connected with the transaction and account alleged in the complaint to have been stated between said firm and the defendant; and the Court finds that the cause of action set forth in said counter-claim is not barred by the provisions of section 337 of the Code of Civil Procedure, nor by the provisions of section 338 of the Code of Civil Procedure, or any of its subdivisions, nor by the provisions of section 339 of said Code, or any of its subdivisions, nor by the provisions of section 343 of said Code, nor by the provisions of any section of said Code relating to the limitations of actions.”

Zuck v. Culp

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