Horn v. Hamilton

Temple, C. — Appeal from judgment and order denying defendant’s motion for a new trial.

' Action to recover money alleged to have been collected on a note by defendant as plaintiff’s attorney. It is charged that the defendant received from the debtor payment and satisfaction in full, both principal and interest, and thereupon canceled and surrendered the note to the maker; that defendant has failed and refused to pay to plaintiff the amount recovered, or any part thereof, “and now refuses to. pay the same, or any part thereof, and now wrongfully withholds the same from plaintiff.”

The defendant admits receiving the note, but denies receiving it as plaintiff’s attorney, and avers that plaintiff and defendant were both creditors of one White, and consulted in regard to the prospect of collecting their debts, and that defendant, with the full consent of plaintiff, finally agreed with White to surrender all the notes held by himself and plaintiff to White in consideration of the assignment to them of White’s interest in a certain contract, to which White was a party; that the contract was assigned to defendant with plaintiff’s knowledge and consent in pursuance of this agreement, defendant agreeing to hold it for himself and plaintiff in proportion to the amount of their respective claims.

He denies that he has collected any money whatever upon the note, and avers an offer to assign to plaintiff the contract transferred to him by White, and his readiness still to so assign it. He also avers that at the time of the transfer White had no other property except a dairy farm, which was mortgaged for more than it was worth, and some personal property, which was then [278]under attachment; that plaintiff and defendant, then consulting as creditors of White, and not as attorney and client, agreed to take the assignment in payment of their indebtedness, and in pursuance of this understanding plaintiff delivered the note in question to defendant, and not otherwise.

The action was tried by a jury, who returned a verdict for plaintiff.

The plaintiff testified, in effect, that he gave the note to defendant as an attorney to collect or obtain security; that he pointed out to defendant sufficient property from which the money might have been made, and that White offered to secure the debt by a second mortgage on his ranch, and that there was ample margin for that purpose, as defendant knew; that he understood that the contract was assigned as security, and not in payment, and afterwards discovered that his note had been surrendered and canceled.