Weiner v. Luscombe

STURTEVANT, J. In an action to quiet title the trial court made findings of fact in favor of the plaintiffs and from the judgment entered Helen C. O’Connor, one of the defendants, has appealed.

[670]Mrs. O’Connor states that heretofore Mr. and Mrs. Weiner were indebted to her in the sum of $700; that she employed D. Herndon, another of the defendants, to act as her attorney; and that he induced her to assign her claim to L. S. Luscombe, his secretary, another defendant, solely for collection. She also claims that the suit was brought in the municipal court of San Francisco in the name of Miss Luscombe, that the plaintiff was successful, and that later an abstract of the judgment was recorded in the office of the recorder in the county of San Mateo. Continuing, she asserts that without her knowledge or consent Mr.- Herndon attempted to compromise her claim by accepting $100 in cash, a promissory note in the sum of $50, and a deed purporting to convey to her some lands in San Mateo County. She then asserts that Mr. Herndon, as her attorney, had no right to compromise her claim; that she assigned it to Miss Luscombe solely for collection, and that the latter held the claim and the judgment evidencing it solely as her trustee.

But the plaintiffs call to our attention the fact that the defendant did not plead those facts in her answer, did not offer to amend, and submitted the case on different issues. Those facts are true in part. She- alleged she obtained a judgment against the plaintiffs and introduced in evidence the judgment in favor of Miss Luscombe. She took the stand and, without objection, she testified to the facts regarding her assignment to Miss Luscombe, and no witness contradicted her. While it would have been better practice if the defendant had pleaded the facts showing she was the owner and that Miss Luscombe was merely an assignee for collection, the facts came out during the trial and the trial court should have made findings thereon. (Sun-Maid Raisin Growers v. Papazian, 74 Cal. App. 231 [240 Pac. 47].) It found the fact to be that Miss Luscombe recovered a judgment, but it did not continue and find that she did so as the assignee of this defendant for collection. It found that this defendant did not recover a judgment against the plaintiffs. As we have shown above, she did recover a judgment in the name of Miss Luscombe and the latter was acting merely as her trusted agent. The finding last mentioned is not sustained by the evidence.

Over the objection of the defendant, the plaintiff introduced in evidence a contract signed by the plaintiffs and Mr. Herndon for the satisfaction of said judgment. That