Hogan v. Globe Mutual Building & Loan Ass'n

GRAY, C. In this action the demurrer of the above-named corporation defendant to plaintiffs’ amended complaint was sustained, and judgment of dismissal was thereupon entered in favor of said corporation. Plaintiffs appeal from said judgment, and the only question presented relates to the sufficiency of the complaint. The respondent contends simply that the complaint does not state a cause of action, and therefore the demurrer to it was properly sustained, and the action rightly dismissed.

The complaint is based upon an order for $386, drawn on the respondent corporation by defendant Esty in favor of appellants, and accepted by the corporation with an indorsement on its face, signed by the corporation, in the following language: “Accepted, payable as follows: $375 upon completion of house, $11 thirty-five days after, provided no liens are filed.” The order in question is dated and addressed to “Globe Mutual Loan Assn.,” and runs as follows: “Please pay to Humboldt Lumber Co., or order, three hundred and eighty-six dollars, for material furnished on your building, w. s. Grant st. and Bancroft, Berkeley, and charge same to my account.”

It is shown by the complaint that the defendant Esty was a contractor constructing the building referred to in the order for the owner of premises upon which it was located; that the building and loan association had in its hands, at the time of -said acceptance by it, moneys and securities belonging to the owner of the building, more than sufficient to pay said order; that soon after the order was drawn, and when the house was nearly completed, it burned down, without any fault on the part of plaintiffs or the contractor, and thereby it became impossible to complete it. It also appears from the complaint that the house, when destroyed, was insured against fire for its full value, in the name of the owner, and for the benefit of the building and loan association, mortgagees of said property, and that the contractor offered to rebuild the house at the original contract price, but the owner [140]thereof refused to allow him to do so, and that the owner thereof does not, nor do the defendants, or either of them, intend to rebuild said building. It further appears, from the complaint that the material furnished by plaintiffs and mentioned in the order was actually used in the construction of-the building, and that the order was given to secure the purchase price thereof, $386, and that after the fire the corporation refused to pay the order when told by plaintiffs that it would be looked to for its payment.