Majority
p. 279[No. 7,562. Department Two.] W. S. WILLIAMS et al. v. ALEX MONTGOMERY.
Headnote
Money Paid to the Use op Another—Verdict—Sufficiency op Evi dence.—Held, that the evidence in this case was insufficient to sustain the verdict.Appeal from a judgment for the plaintiffs in the Sixth District Court, County of Yolo, and from an order denying a new trial in the Superior Court of Yolo County. Denson, J.
The evidence in the case was in effect as follows: W. S. Williams, one of the firm plaintiff, after proving the execution of two chattel mortgages by E. S. Johnson (afterwards introduced in evidence), testified as follows: The defendant, Montgomery, requested us to advance to E. S. Johnson the sum of one thousand dollars, in order to enable the said E. S. Johnson to buy out the interest of his brother, John Johnson, in the said growing crop. And in order to secure himself for the one thousand dollars advanced by us to the said E. S. Johnson for him, and the balance which was due us from John Johnson, I suggested that E. S. Johnson give a chattel mortgage to our firm for the back indebtedness of John Johnson, the thousand dollars advanced for Mr. Montgomery, and for future advances that might be advanced by us to E. S. Johnson; to which E. S. Johnson and defendant, Montgomery, agreed. And we advanced the sum as requested, and the chattel mortgages were drawn up, executed, and delivered to me for the benefit of our firm and Mr. Montgomery.
* ¥ ¥ * ¥ ¥ $ ¥
The defendant promised to pay the money back to our firm
p. 280
within ten days after the same was advanced, but did not do so.
There is now due from the defendant to us, the sum of three hundred and fourteen dollars, reckoning the interest at seven per cent. Notes were taken for the sum of fourteen hundred and seventy-nine dollars and seventy-one cents, on the 4th day of May, 1878, and the mortgages were given to secure their payment. The thousand dollars advanced to the defendant, Montgomery, was included in the notes given, and the mortgages were taken as much for his benefit as ours, it being my intention, all the time, to do- all I could to protect his interest.
$ $ $ $ $ % viC-
I charged this transaction, at the time it occurred, in our books as follows:
Davisville, May 4th, 1878.
E. S. Johnson,
Bought of Williams & Co.
May 4th, Mdse. Act., E. S. J............. $52 00
Act. Jo. Johnson......... 174 52
Act. Jo. Johnson......... 105 00
Note Jo. Johnson........ 145 84
Cash........................1,000 00
-$1,479 61
May 4th, By Note “ “ do
CREDITS.
..............$600 00
.............. 879 61
The notes and mortgages were dated May 4th, 1878, and payable thirty days after date. One upon the portion of the crop in Sacramento County, and the other upon the portion of the crop in Tolo County; the former for the sum of eight hundred and seventy-six dollars and sixty-one cents, with interest at one and one fourth per cent, per month, and future advances not exceeding in all seven hundred and fifty dollars; and the latter for six hundred dollars, with interest at the same rate, not exceeding in all seven hundred and fifty dollars. The witness further testified that the firm received under the mortgage one hundred and eighty-two thousand nine hundred and sixty-five pounds of wheat, which they took at one dollar and fifty-two and one half cents per cental.
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James O’Neal—the attorney who drew the mortgages— testified with reference to them:
The circumstances were, Mr. Williams advanced to E. S. Johnson, for Mr. Montgomery, one thousand dollars, and it was agreed between the parties that Mr. E. S. Johnson should give security to Mr. Williams for the money advanced to Mr. Montgomery, and for the back indebtedness of John Johnson, and future advances that might be made to E. S. Johnson.
The case was submitted on the evidence of the plaintiff.
This action was brought to recover the sum of five hundred dollars, alleged to have been paid by plaintiffs to and for the use and benefit of defendant, at his special instance and request. Trial by jury, and verdict for three hundred and fourteen dollars.
We have examined the transcript very carefully, and find no evidence therein to sustain the verdict. If the mortgages referred to were in any manner connected with plaintiffs’ claim, it appears from the evidence that plaintiffs received a quantity of wheat, sufficient in value to pay the indebtedness of the defendant to them. But in no view of the case is there sufficient evidence to sustain the finding of the jury.
Judgment and order reversed.