Streeten v. Robinson

Searls, C. This is an action by Streeten, as assignee in insolvency of the American Bridge and Building Company (a corporation), to recover from the defendant the sum of eight thousand nine hundred and sixty-seven dollars and fifty-two cents averred to have been received [544]by said defendant to the use of said insolvent, and by him converted to his own use.

The cause was tried by the court, and findings in writing filed in defendant’s favor, upon which he had judgment, from which, and from an order denying a motion for a new trial, plaintiff appeals.

According to the findings the insolvent, on the eighth day of October, 1890, received from the government of the United States a check or draft, drawn upon the sub-treasury at San Francisco, for eight thousand nine hundred and sixty-seven dollars and fifty-two cents, which draft, properly indorsed, was delivered to defendant for collection, collected by him, and, with the consent of said insolvent, five thousand dollars was retained by him in payment for services rendered by him as an attorney for said insolvent, said sum being an agreed fee allowed him by said insolvent, and the residue was paid to said insolvent and to one Charles C. Rohlffs by its direction and authority.

Defendant is an attorney at law, engaged in the practice of his profession in San Francisco. As such attor-' ney he was employed by, and rendered legal services to, the insolvent, for which a settlement was had, and a fee of five thousand dollars was agreed upon, and paid as above stated.

The contention here grows out of the following facts: The contract for the professional services of defendant was made by John P. Sheldon, vice-president of the insolvent, the president being absent in Mexico at that time and during the period covered by the services in question.

The draft was indorsed, and delivered to defendant for collection by order of said vice-president; and the settlement had with defendant as to the amount of his fee, the payment thereof, and the disposition of the residue of the money, were all had with and done by the consent and order of said vice-president.

The board of directors of the insolvent took no action in the premises from the beginning to the ending of the [545]