Wickersham v. Denman

McKee, J. — This was an action to recover the sum of $4,496, awarded to the plaintiff’s assignor, as fees due him for services rendered in an action of partition pending in the court of which he was clerk at the time of the rendition of the services.

Against the objection and exception of the plaintiff, the court struck from the complaint all allegations of a statement of facts constituting a cause of action upon an implied promise of the defendants to pay the moneys awarded to the clerk, and tried the case upon averments of a statement of facts constituting a cause of action upon an express promise; and after hearing the evidence offered and given by plaintiff and defendants, upon the issues joined upon these averments, it ordered, upon motion, of defendants, that a nonsuit be granted, and subsequently denied a motion for a new trial.

It is insisted that in each of these orders the court erred.

The evidence taken in the case tended to show that in May, 1860, Horace Gates commenced an action in the [385]then District Court of Sonoma County against Francis Salmon, Gustave Touchard, and many other persons named as defendants, for partition between said plaintiff and defendants as tenants in common of a large tract of land, situated in the counties of Marin and Sonoma, known as the Laguna San Antonio or Bojorquez rancho.

All persons named in the complaint as defendants regularly appeared and answered, setting forth the interests in the ranch which they respectively claimed. Up to September, 1865, while proceedings were pending, there were incurred by the plaintiff, for the common benefit of all the tenants in common, costs which were due and owing to the clerk of the court for services therein. In that condition of the case, defendants associated themselves for the purpose of buying from Gates, the plaintiff in the action, for their mutual benefit, his estate and interest in the ranch, and his right of action in the partition suit; and to accomplish that purpose, they entered into an agreement in writing, which, among other things, recited as follows:—

“ This indenture, executed and delivered this first day of September, 1865, witnesseth: That whereas, each of the parties is in possession of a portion of the tract of land known as the Bojorquez rancho, under claim of title; and whereas, the action entitled Gates v. Salmon et ais., for the partition of said Bojorquez rancho, directly affects the parties hereto by and through the portion of said rancho so in their possession;