Bradley v. Parker

SEARLS, C. This action was brought to enforce a trust against the defendant on account of certain sheep received by him to be kept for the plaintiffs. Defendant had judgment, from which, and from an order denying a motion for a new trial, James S. Bradley, one of the plaintiffs, appeals.

According to the amended complaint, one James H. Bradley died intestate, in the county of Tulare, August 4, 1870, leaving an estate consisting of real and personal property, among the latter of which was fifteen hundred head of sheep. His heirs were Margaret Bradley, his widow, and the plaintiffs herein, who are their children, all of whom were minors at the date of their father’s death. At the time of the commencement of this suit, appellant was of the age of twenty-one years, and the other plaintiffs were aged twenty-three years and twenty-six years, respectively. No administration was ever had on the estate of James H. Bradley. About 1877, Margaret Bradley, the widow and mother of plaintiffs, entered into an agreement with defendant, whereby the latter was to take charge of said sheep for said plaintiffs, in trust for them, to render an account of the issues and profits, and to account for all the increase. Defendant took the sheep to Utah about 1878, and, contrary to his trust, traded some of the sheep for cattle, sold some to pay his own debts, sold the remainder, as well as the cattle, and retained the money, and mingled it with his own, and since 1878 has enjoyed the profit thereon, without right, etc. The complaint further avers that, before the trust agreement was entered into, Margaret Bradley had taken possession of certain of the property of the estate, and had given her interest in the sheep to plaintiffs, whereby it is alleged they became the [252]legal owners thereof. Defendant is averred to have received for the sheep $2,000, which, with the accumulations since 1878, now amounts to $4,000, which sum plaintiffs pray be declared a trust fund, and defendant be decreed to pay with interest, and that he account, etc. It is also alleged that the defendant has never disavowed the trust. The complaint is not verified. The answer denies all the material allegations of the complaint, and pleads the statute of limitations. The cause was tried by the court without a jury, and written findings filed, upon which the judgment was entered. The findings of the court negative all the allegations of the amended complaint charging the existence of a trust relation between defendant and the plaintiffs. The court then proceeds to find that October 1, 1876, Margaret Bradley, the mother of plaintiffs, had in her possession about six hundred and fifty sheep, in poor condition, which she let to defendant for one year; the latter to care for them for one year, and each to have one-half the wool and increase. The winter of 1876-77 was very dry, and in the spring of 1877 feed failed, and defendant, having seven thousand sheep of his own, was compelled to move them, in quest of food. Defendant requested Margaret Bradley to take charge of her sheep, which she did not desire to do; and thereupon a new agreement was made, by which defendant was to take the Bradley sheep with his own, pay himself for the expenses and trouble of their care, and, if anything was left, to pay it to Mrs. Bradley. Defendant started with the sheep for Utah, having in all seven thousand eight hundred, of which all died on the road except three thousand one hundred. The Bradley sheep being very poor, a greater proportion of them died than those of defendant. Defendant sold $200 worth of sheep to pay expenses, among which were some ten to twenty of the Bradley sheep, worth $2 per head. Defendant traded off all the remainder of the sheep—among them, about one hundred and twenty-five head left of the Bradley sheep, worth $2 per head—for one hundred and eighty head of cattle, which he afterward sold for $20 per head, but did not receive the money therefor, the same having been garnished under a writ of attachment against defendant, in favor of the Bank of Visalia, for moneys advanced to defendant, and by him expended in taking the sheep to Utah. The six hundred and