Petersen v. Lyders

JOHNSTON, J., pro tem. This is an appeal from a judgment for plaintiffs, entered pursuant to a motion for a directed verdict. Plaintiffs sued the defendant on a common count for money had and received. Defendant was the attorney appointed by the Danish consul to represent plaintiffs in collecting certain moneys due from estates. Plaintiffs had executed a power of attorneys to the Danish Home Office in Denmark, which was forwarded to the Danish consul in San Francisco, who in turn appointed defendant and gave him the power of attorney. Defendant admitted this procedure and that at all times he knew that he was representing plaintiffs. Defendant attempted tó set off in this action certain claims alleged to be due him from the Danish government; also from other foreign heirs for collecting moneys for them from other estates. He also contends that by virtue of the sovereign character of liis employer, the Danish consul, he is not amenable to plaintiffs in such a proceeding. He also bases his’ contention upon the grounds that they, as principals, have no right to proceed against him as a subagent.

The recent case of Estate of Clausen, 202 Cal. 267 [259 Pac. 1094], decides that the consul of Denmark, in representing foreign heirs, does not do so in his sovereign capacity under and by virtue of the treaty between the United States and Denmark, establishing consular offices [305]and defining their duties. (Danish treaty, August 10, 1926, 8 U. S. Stats. 340.) The Danish consul, therefore, in acting for foreign heirs, does so under a power of attorney and not in his official capacity. (Estate of Servas, 169 Cal. 240 [146 Pac. 651, Ann. Cas. 1916D, 233]; Estate of Ghio, 157 Cal. 552 [108 Pac. 516, 137 Am. St. Rep. 145, 37 L. R. A. (N. S.) 549].) We must conclude, therefore, that the Kingdom of Denmark in no way is interested in this action in its sovereign capacity.

Appellant then contends that the plaintiffs, who have the character of principals, have no right to proceed in this form against the defendant,' who is a subagent. We are not impressed by this contention for the reason that there is no insistence in the law of agency in this state that there be a privity of contract between the principal and the subagent to authorize the principal to proceed against the subagent as a beneficiary in fact of the contract of agency between the agent and the subagent. (Marshall v. Swaim, 102 Cal. App. 119 [282 Pac. 423]; National Bank v. Grand Lodge, 98 U. S. 123 [25 L. Ed. 75]; Hall v. Marston, 17 Mass. 575; Chung Kee v. Davidson, 102 Cal. 188 [36 Pac. 519].) The court in the case of Chung Kee v. Davidson, supra, at page 196, states upon considering the authorities in a similar problem: “The Supreme Court of the United States, after conceding the general rule to be that privity of contract is necessary to the maintenance of the action of assumpsit said: ‘But there are confessedly many exceptions to it. One of them, and by far the most frequent one, is the case where, under a contract between two persons, assets have come to the promisor’s hands or under his control, which in equity belong to a third- party. In such a case it is held that the third person may sue in his own name. But then the suit is founded rather on the implied undertaking the law raises from the possession of the assets than on the express promise.’ ” (Italics ours.)