Butler v. Austin

Myrick, J. The plaintiff alleged in his complaint that defendant was indebted to him as a balance for moneys paid out and expended, in the sum of $2,434.32, and asked that an accounting be had. This complaint was filed October 7, 1875. On the 19th of October, 1877, the defendant filed his answer, which set up several matters by way of counter-claim, and alleged that plaintiff Avas indebted to defendant in large sums of money, for principal and interest. This pleading seems to have been regarded by the parties as a cross-complaint, and AAras demurred to by the plaintiff. The demurrer Avas overruled. ■ By stipulation the case Avas referred to a referee, with instructions to take the testimony and report the same, together Avith the findings of fact. On the 27th of October, 1879, the referee made his report in Avhich he stated the aggregate amount held in trust by plaintiff for defendant to be $22,960.57, and the aggregate amount paid by plaintiff for account of defendant, $252.71. Judgment aa-us thereupon rendered for defendant and against plaintiff for $22,707.76.

First. The instrument in writing executed by plaintiff to defendant, by the terms of Avhich he Avas to account for and pay to defendant the moneys therein specified, provided for the payment of interest at the rate of one and a half per cent per month after demand. dSTo demand was found; therefore, it was error to compute interest at that rate.

Second. The cross-complaint Avas filed October 19, 1877. The report of the referee was filed October .27, 1879. The referee heard evidence of, and charged the plaintiff Avith amounts received between those dates. This Avas error, there being no amended or supplemental cross-complaint. The plaintiff was called upon to meet only the transactions occurring prior to October 19, 1877.

[5]Third. The referee allowed to the defendant computations of interest on amounts received by plaintiff after the filing of the cross-complaint. This also was error.

Fourth. It does not appear from the findings that either of the sums paid to Lloyd Baldwin and in satisfaction of the judgment in Yassault v. Austin, was in any way connected Avith the relations of trust existing betAveen the parties or the accounts thereof. If not so related they Airould be barred by the Statute of Limitations.

Fifth. The referee charged the plaintiff AAuth $598 (and interest thereon) received by him in 1879 from the San Francisco and Point Lobos Road Company. There Avas no pleading to justify this.