Hulford v. Neale

McFarland, J. This action was brought to recover certain moneys alleged to have been collected and received by defendant from divers persons for and on account of plaintiffs. Judgment was rendered for plaintiffs in the sum of $2,038.95. Defendant appeals from the judgment and from an order denying a motion for a new trial.

The plaintiffs were conducting a warehouse business, and in February, 1893, they agreed to sell the business, including the goodwill, leases for warehouses, office furniture, and certain other personal property used in the business, to the defendant. The transaction was completed and possession given to defendant on March 1, 1893. At that time there were large quantities of grain and general merchandise stored in the warehouses, upon which money was due to plaintiffs for storage. This grain and merchandise had been taken by plaintiffs under the system called “ season storage;” that is, a certain sum per ton was charged for the first month’s storage, and a smaller sum for succeeding months, until a certain amount agreed upon had accrued, after which there was no further charge until the end of the “ season,” which was the first day of the following June, and the owner of the property stored had the right to allow it to remain in the warehouse until said 1st of June. For instance, if the owner was to pay fifty cents per ton for the first month, and twenty-five cents for the succeeding months, until the whole should amount to $1.50 per ton; then, after the expiration of five months, he could have his property remain in the warehouse until June 1st following, without further charge.

[612]At the time defendant took possession, on March 1st, the storage on the property which had been stored with plaintiffs was due, and they had a lien upon it for said storage;. and, in the written contract between the parties, it was agreed as follows: “ Said party of the second part [defendant] does also hereby agree that he will collect, without making any charge therefor, all claims and liens that the said parties of the first part [plaintiffs] have or hold against any property now stored at said warehouses, and deliver the amount so collected to them from time to time, promptly, upon the collection thereof, said claims and liens in all cases to be collected before the delivery of said property to the owners thereof.” The court found that of these claims and liens defendant did collect the sum of $4,053.74, and that he had paid plaintiffs $1,588.90, and no more; and these findings are clearly supported by the evidence. Under these findings the plaintiffs would have been entitled to judgment for $2,464.84; but the court also found that said grain and merchandise remained for a time, and “occupied certain space in said warehouses, and was taken care of by defendant, and he performed work in delivering the same,” and for this defendant was allowed $426.19, which reduced the amount of the judgment to $2,038.65. The correctness of this last finding need not be inquired into, as it was to defendant’s advantage.