Bogart v. Crosby & Van Haren

De Haven, J. This appeal is by the defendants Remondino, Daggett, and Witfield from a judgment against them in favor of plaintiff.

It appears that defendants Crosby & Van Harén were verbally authorized by appellants to sell for them a certain tract of land in San Diego, and acting under this authority, they agreed to sell the same to plaintiff, and received from him the sum of three hundred dollars as a deposit on the contract. No deed could be made at the time on account of the absence of the appellant Remondino, the plaintiff being assured by defendant Van Harén that he would return within two weeks. After waiting about three weeks, the plaintiff notified Witfield, one of the appellants, that owing to the long delay and uncertainty as to the time when Remondino would return, he would not complete the purchase, and demanded a return of the money paid by him as a deposit. Witfield made no objection to the refusal of plaintiff to complete the purchase, for the reason, as he states, that he considered the land worth more than plaintiff was to pay for it, and so he informed plaintiff that he would return his check to Crosby & Van Harén, and that plaintiff might settle with them. The reason for this action seems to have been that appellants did not wish to pay their agents for services in relation to the transaction, and, to avoid controversy upon this point, turned the money over to them and left the plaintiff to settle with such agents. The appellants soon thereafter sold the land to another person, and it does not appear that it was sold for any less than plaintiff was to pay, or that defendants have suffered any damage by reason of the refusal of plaintiff to complete the purchase.

[281]This action was first brought against Crosby & Van Harén alone. On October 19, 1889, an amended complaint was filed" by which appellants were also made defendants, this complaint alleging that “ defendant is an association of two or more persons doing business .... under the common name of Crosby & Van Harén.”

On October 24,1889, a second amended complaint was filed, in which only Crosby & Van Harén were alleged to be an association, under the name of Crosby & Van Harén, and all of the defendants were charged with having received from plaintiff, and to his use, the sum of three hundred dollars.

It is claimed by appellants that the cause of action stated in the last amended complaint is, as against appellants, essentially different from that alleged in the first amended complaint, and that as it was not filed within two years after the cause of action accrued, the same is barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure.