Lennox v. Brown

ASHBURN, J. After a nonjury trial the court awarded plaintiff a judgment against defendant Isadore Brown (a woman) for a principal sum of $17,000 upon the theory of account stated. Defendant appeals from the judgment and an order denying her motion for new trial.

[785]Defendant was employed by plaintiff as general manager of the Riccardo Apartments which he had purchased, situuated in the city of Los Angeles. Plaintiff lived in Nebraska and defendant in Los Angeles. The complaint was in two counts, one for conversion of moneys entrusted to defendant, and the other upon an account stated. The latter is supported by a document (Exhibit 1) signed by defendant and delivered to plaintiff on or about its date, reading as follows: “2-17-53 This is to certify that Dr. Lennox left with me $17,000 to put in a safety deposit box, to pay on property to be bought, and I used it, but I will replace it. Signed Isadore Brown.”

The first cause of action alleged delivery to defendant of $5,000 on or about September 15, 1949, with instructions to place it in a safe deposit box and keep the same until plaintiff should authorize its use in the purchase of realty for him; also, that $12,000 was delivered to defendant on or about January 12, 1951, to be kept in the same safety box until authorization should be given by plaintiff to use it in the purchase of realty for plaintiff or maintenance of property owned by him and managed by defendant. Plaintiff testified that he delivered $5,000 to defendant in September, 1949, and another $12,000 about January, 1951, with instructions as alleged in the complaint; that said sums were in currency and he took no receipt from defendant. Having given no authority for use of the money for any of the specified purposes or otherwise, plaintiff early in 1953 learned or suspected that there was no money in the box. Defendant claimed that part of it was there and at plaintiff’s insistence they went to the box and verified the fact that there was no money in it. He asked her if she had any of it at her apartment and she said “No, but I will pay it back.” “Why did you take it?” “Because it looked so good to me.” “ [S]he sat down on the floor and was crying.” According to defendant, plaintiff then began asking constantly for return of his money.

In February, 1953, the parties met at the home of plaintiff’s sister in Marshall, Texas. Defendant then disclosed that she had drawn $275 from the Riccardo bank account to pay for her trip but said she would pay it back. Plaintiff then prepared Exhibit 1 in defendant’s presence and presented it to her for signature. She did not want to sign it but did so. Less than three months later she telephoned plaintiff in Omaha saying she had decided she would not pay, that she had a reason and he would find out later. None of the money