In re Disbarment of Cobb

McFarland, J. On June 3, 1889, Andrew Crawford filed in this court a written accusation against Moses G. Cobb, charging him with violating his oath as attorney at law, and praying that this court “take such action in the premises as may be just and proper.” Cobb filed a demurrer to the accusation, on the ground that it does not state sufficient facts to constitute an accusation or complaint. He also filed an answer; and before any ruling on the demurrer, with the consent of the parties, a referee was appointed to take and report the evidence, and his report has been filed.

The accusation was not sufficient. It states substantially these facts: Cobb, as attorney for one Schallard, commenced an action against the Eel Diver Steam and Navigation Company, to foreclose two mortgages on the steamer Ferndale. Judgment was entered for plaintiff in the superior court for $13,015.50, in November, 1882. Defendant appealed the case, and judgment was affirmed in the appellate court on July 15, 1886. In the mean time, the relator herein, Crawford, had obtained another [551]mortgage on the Fern dale, and being desirous of buying the steamer, or at least having it sold when it would bring the most, and saving himself from loss, he made an arrangement with Cobb that the sale of the steamer should be delayed until a more favorable time for sale, and that he should pay Cobb certain moneys, which should be applied on the sale if Crawford should become purchaser of the steamer, and should be returned by Cobb to Crawford in case the latter should not become such purchaser. Under this contract, Crawford gave Cobb moneys and obligations, from time to time, until the aggregate thereof amounted to over five thousand dollars. Afterward the steamer was sold under execution. At the sale, Cobb bid in the steamer at seventeen thousand five hundred dollars, but immediately afterward made an agreement with Crawford to let the latter have the steamer for sixteen thousand five hundred dollars, the amount which Crawford had bid at the sale. “Thereafter the plaintiff in said action (Schallard) came from his residence at Humboldt to the city and county of San Francisco, and discharged said Cobb as his attorney, and refused to let your relator (Crawford) have said steamer for the sum of sixteen thousand five hundred dollars, and repudiated the authority of said Cobb to make any arrangement for the sale of said steamer, or of the sheriff’s certificate of sale.” It is then averred, upon information and belief, that Schallard demanded of Cobb the money and obligations received by the latter from Crawford, and that Cobb refused and neglected to pay the same. It is further averred that Cobb did not pay said moneys to the plaintiff, or to “your relator, or to any person for him, except as next hereinafter stated, to wit, on May 24,1888, and after demand made as aforesaid, the said Schallard assigned his claim against the said Cobb, growing out of said payments received by said Cobb, to your relator., and afterward, and on the sixth day of May, 1889, the said Cobb settled with your relator and received a receipt in full of all demands on the part of your relator.”