Petersen v. Lyders

JOHNSTON, J., pro tem. This appeal is companion to the one taken by defendant in the above-entitled cause, which this day has been decided in favor of plaintiffs (ante, p. 303 [33 Pac. (2d) 1030]). The facts are fully set forth in the decision filed therein. As there stated, the defendant for many years has been the attorney for the consulate of Denmark. Plaintiffs were the heirs of different estates of decedents residing in the United States and in particular in California, in which matters connected with said estates defendant hád represented them as attorney upon request of the Danish consul. The heirs of each of the five estates involved herein brought separate actions against defendant seeking to recover moneys he had collected in those several estates and belonging to said heirs. Each complaint was in form for money had and received.

Plaintiffs’ case was largely made out by defendant’s testimony, and at the trial plaintiffs amended their complaints to conform to the proof, thereby reducing the amounts prayed for. This reduction resulted at least in part by allowing defendant certain credits for disbursements in these matters and for fees and disbursements in other matters he [309]had handled for the Danish consul. To each complaint defendant filed a second amended answer alleging that he had accounted to the Danish consul for all moneys received on behalf of plaintiffs, and subsequently he filed a supplemental answer in each case alleging payment. The parties stipulated that these amended and supplemental answers be considered answers to the amended complaints. All the cases were by stipulation and order consolidated and tried before a jury. At the conclusion of the trial the court instructed the jury to bring in a verdict for plaintiffs for the amounts prayed for in the amended complaints, but refused to allow any interest. Defendant appealed from the judgment, but as stated his appeal has been decided adversely to him. The trial court likewise struck plaintiffs’ cost bill from the files. From that'portion of the judgment refusing them interest, and from the order striking out their cost bill, plaintiffs have prosecuted this appeal.

Plaintiffs contend, and we think rightly, that the court was in error in refusing to instruct the jury to allow them interest. The evidence. showed that defendant had collected money belonging to plaintiffs and that he still retained it. It is true that he claimed to have accounted for it to the Danish consul and that he had paid it to the consul by delivering to him two promissory notes. However, this .court has held in determining the' other appeal that he did not account and that he had not paid over the money.