Long v. Saufley

Hayne., C. Action upon a contract to pay plaintiff five hundred dollars “out of money collected on judgment in action of Frank v. Kilbourn et al., .... provided the-said money shall be collected from property of defendant pointed out by the said Long.” The complaint avers that said Long “ did point out property belonging to said Kilbourn of the value of thirty thousand dollars out of which said judgment could have been collected, and did keep and perform all the requirements of said agreement on his part to be kept and performed ”; but that defendant compromised and settled said judgment by accepting four thousand dollars without the knowledge or consent of Long. Judgment was given for plaintiff, and defendant appeals.

Findings were waived, and the evidence is not brought up. It must therefore be presumed that Long did point out property from which the amount of the judgment in question could have been collected, and that the appel-. [262]lant chose not to collect it, but to accept a less sum. This being the case, judgment was properly given against him. (Wolf v. Marsh, 54 Cal. 232.)

We therefore advise that the judgment he affirmed.

Foote, C., and Belcher, C. C., concurred.

The Court. For the reasons given in the foregoing opinion, the judgment is affirmed.