Webster v. San Pedro Lumber Co.

McFarland, J. This is, in form, an action to recover certain moneys alleged to have been deposited by plaintiff with defendant at various times from January 1, [328188]7, to November 1, 1889, to be held by defendant in trust for plaintiff. The answer denies that any moneys were deposited with defendant in trust, and avers substantially that during the times mentioned in the complaint defendant was engaged solely in the business of buying, selling, and dealing in lumber; that it was not engaged in banking business, and was not in any respect a trust company; that from August 31, 1887, to October 31, 1889, plaintiff was an employee of the defendant in the lumber business; that between August 31,1887, and April 29, 1889, plaintiff did make certain deposits of money with defendant, but that they were made at the request of plaintiff and for his accommodation and convenience, and not for the accommodation of defendant; that during said times plaintiff made purchases of lumber from defendant; that defendant has fully paid plaintiff for his services and for all money deposited; that defendant kept a full and accurate account of all transactions between it and plaintiff, and that upon a settlement of the accounts between them on October 31,1889, there was due and owing from plaintiff to defendant the sum of eighty-one dollars and twenty-four cents. The answer also set up the statute of limitations as to all items prior to April 29, 1889. The court found, substantially, that all the averments of the answer were true, except perhaps as to the statute of limitations, and gave judgment for defendant for the eighty-one dollars and twenty-four cents. Plaintiff appeals from the judgment and from an order denying a motion for a new trial.

The main contention of appellant is that the evidence does not support the findings, but this contention cannot be maintained. Appellant does not pretend to have kept himself any general account of the various transactions between him and the respondent. He relied upon the books of account kept by respondent of its general and current business, and made no objection to the state of his accounts with respondent as reported from its books until long after he had gone out of its [329]employment. The only evidence of importance offered by him was his own testimony based mainly upon written memoranda which he said he had made from memory of a certain book in which he had made some entries, and which had been destroyed. His recollection of the things to which he testified was so uncertain, and his testimony in chief was so modified in his cross-examination, that if there had been no other evidence in the case we would not be justified in disturbing the findings of the court.