Petersen v. Taylor
Before: Haynes
Synopsis
Action for Trust Funds — Sufficiency of Evidence.—Plaintiff alleged that defendant collected money .belonging to another, and agreed to hold it till a dispute as to its ownership was settled, giving a written acknowledgment that he so held it; that such dispute was settled; and the assignment of claimants’ rights to plaintiff. Defendant’s answer admitted receipt of the money, but denied plaintiff’s other averments. Defendant also pleaded a former judgment on the same cause of action. Plaintiff put in evidence defendant’s written acknowledgment and the assignments to himself, and one of his assignors testified that defendant had not paid the money. Defendant did not put in evidence any memorandum of settlement, nor the judgment pleaded by him. He admitted his signature to the acknowledgment, but said that he had no memory of the matter, and he failed to contradict any of plaintiff’s testimony. Held, that a verdict for defendant was not justified.
Trust—Limitation of Actions.—A Certificate That the Maker thereof holds certain money to abide settlement of disputes as to its ownership creates an express trust, with no definite time fixed for its termination by payment, and hence limitations will not run against a claim on such certificate until the true owner has been ascertained, and a demand made by one showing a right to the money.
HAYNES, C. Appeal from judgment and from an order denying a new trial. The complaint states three causes of action, the second and third, however, being different counts upon the same matter. The first cause of action is to recover [50]$125, moneys alleged to have been received by defendant for the use of plaintiff on the-day of December, 1887. The first count on the second cause of action is for moneys had and received, amounting to $655, and the second count is for the same sum, alleging the facts substantially as follows: That on July 2, 1884, defendant collected from the city of San Francisco said sum on two certain judgments, one in favor of B. Bonnett, and the other of C. H. Parker; that defendant agreed to hold said money until certain disputes should be settled between B. Bonnett and Eli Bonnett as to which was entitled to the money, whereupon defendant signed and delivered to Eli Bonnett, for the benefit of all parties, the following paper:
“This is to certify that I have the sum of $655, collected from the city and county of San Francisco in the suits of B. Bonnett and C. H. Parker against the city and county of San Francisco, claimed by Eli Bonnett, but attached in the suits of Petersen vs. Bonnett, as the money of B. Bonnett, to abide settlement or suit against me to determine the ownership of said sum.
‘‘ [Signed] JOS. W. TAYLOR.
“July 2, 1884.”
It was further alleged that all disputes about the ownership had been settled, and all claims of Eli and B. Bonnett thereto had been sold and assigned to plaintiff, and on or about December 1,1887, plaintiff notified defendant thereof, and demanded payment. To the first cause of action the defendant answered, denying the facts alleged, and pleaded the statute of limitations, and made a like answer and plea to the first count of the second cause of action. To the second count he answered, admitting that on July 2, 1884, he collected in his own right in the cases mentioned $12,000, but denied that he agreed to hold the $655 until certain or any disputes should be settled between the Bonnetts; admitted that he signed and delivered the writing set forth in the complaint; alleged that all disputes concerning the same were settled July 8, 1884, by release in writing, as follows:
“We have this day settled all our affairs, and the judgments in the actions of B. Bonnett vs. The City and County [51]
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