Blake v. Mosher

PLUMMER, J. Action begun for money had and received. Defendant had judgment and the plaintiff appeals. The complaint in this action (omitting the title and the prayer) contains three paragraphs, as follows:

“I.

“That within two years last past, in the County of Yolo, State of California, defendant above named became indebted to plaintiff above named in the sum of Fifteen Hundred Dollars ($1,500.00) on account of moneys had and received by said defendant for the use, and for the benefit of said plaintiff.

“II.

“That plaintiff has demanded the payment of said Fifteen Hundred Dollars ($1,500.00) but defendant refused, and still refuses to pay same.

“III.

“That the sum of Fifteen Hundred Dollars ($1,500.00) is now due, owing and unpaid from defendant to plaintiff with interest thereon at the rate of 7% per annum from the 15th day of November, 1934.”

The answer contains only general denials.

At the termination of the trial the court made the following findings of fact:

1. That all of the allegations of paragraphs I and III of the complaint are untrue;

2. That all the allegations of paragraph II of the complaint arc untrue.

Based upon the foregoing findings, the court drew its conclusion of law that the plaintiff was not entitled to recover, and the defendant was entitled to his costs.

The action in this case arose out of negotiations looking to a sale to the plaintiff of a store business at Clarksburg, owned and conducted by the defendant.

It would appear that some conference had been engaged in between Mrs. Lucinda M. Blake, acting as agent for the [534]plaintiff, and the defendant Mosher, relative to the purchase and sale of the property just referred to. On October 29, 1934, it appears that Mrs. Blake paid to the defendant the sum of $1,500. At that time the following instruction in writing was executed:

“Oct. 29, 1934.

Received of Mrs. L. M. Blake the sum of Fifteen Hundred ($1500.) A.M.