Biurrun v. Elizalde

The complaint alleges that defendants, within two years immediately preceding the commencement of this action, became indebted to plaintiff in the sum of $6,300 for and on account of money “had and received by said defendants to the use of and benefit of plaintiff,” etc., that said sum “and the whole thereof is still due, owing and unpaid.”

The defendants Ramirez and Elizalde filed separate answers to the complaint. The former denied that he became indebted to plaintiff in the sum alleged in the complaint, or in any other sum, within “the two years last past immediately preceding the commencement of this action, or at any time,” and denied that there is due plaintiff from him said sum or “any sum or at all,” etc.

Elizalde by his answer admitted that, within the time mentioned in the complaint, “defendants did become indebted to plaintiff in the sum of $6,300.00, for and on account of nine hundred head of sheep sold defendants by plaintiff,” but denied that “there is now due to plaintiff from defendant” (Elizalde) the sum named or any sum; that, “within the last two years past” he (Elizalde) paid to defendant Ramirez the sum of $6,300, “as and for plaintiff herein”; that said Ramirez, as defendant “is informed and believes . . . has appropriated said sum of $6,300.00 to his own use.” Said answer asked that judgment be awarded plaintiff as against Ramirez and that he (Elizalde) “be dismissed with his costs.”

The trial was before the court, sitting without a jury. The court found that Ramirez was not at any time indebted to plaintiff in the sum of $6,300 or in any sum whatever but that Elizalde was indebted to the plaintiff in the sum of $5,600, for and on account of money had and received by the said defendant Elizalde, to the use and benefit of

Judgment was, upon the findings, awarded and entered in favor of plaintiff against Elizalde for the sum of $5,600 and costs, and in favor of Ramirez and the action as to him dismissed.

The plaintiff moved for a new trial as to Ramirez and the motion was denied.

The appeal is by the plaintiff from the judgment in favor of defendant Ramirez and from the order denying him a new trial as-to said defendant.

This case in a different form was once before considered by this court, the appeal therein being from a judgment entered upon an order granting a nonsuit. (Biurrun v. Elizalde et al., 61 Cal. App. 675 [ 215 Pac. 690 ].) Therein it was held that the plaintiff had introduced sufficient evidence to make out a prima facie ease under the allegations of his complaint, and the judgment of nonsuit was accordingly reversed.

The points urged for a reversal are: That the findings are not supported by the evidence, and that what purport to be the findings are not findings of fact but conclusions of law.

It appears that plaintiff was, in the latter part of the year 1919, the owner of a band of 728' head of sheep and that he was then without the necessary pasture for the proper feeding of the sheep. On the twenty-sixth day of December, 1919, the plaintiff, so he testified, met Elizalde, who is a cousin of plaintiff, and Ramirez in front of the Western Hotel, in the city of Marysville, and on that occasion plaintiff proposed to Elizalde that if he (Elizalde) would take possession of his 728 head of sheep, and feed and care for them, he (plaintiff) “would pay him $2,176.00 as expenses for running them, and when he (Elizalde) sold the sheep he was to pay me $8.00 per head and keep for himself all that he received over that sum. We then went to the First National Bank,” plaintiff proceeded to testify, “and I gave Mr. Elizalde a check for $2,176.00. I had 728 head of sheep that I turned over to Mr. Elizalde. After we left the bank, we had a conversation outside on the same day, and Mr. Ramirez suggested that we make a note, and Mr. Ramirez wrote a note for us for the sum

Elizalde testified that he did not buy the plaintiff’s sheep, but took possession of the flock to feed and care for under the terms and conditions of the agreement as shown by the testimony of plaintiff as above given; that the agreement was made in the presence of Ramirez. He stated that the latter suggested that plaintiff advance the sum of $2,176 to witness for the “running expenses” incurred in feeding and taking care of the sheep and that witness then execute and deliver to plaintiff his note for $8,000 “as security for the sheep”; that plaintiff, acting upon said suggestion, advanced the sum of $2,176 to witness, and that the latter, •likewise prompted, gave his note to plaintiff for the sum of $8,000. Elizalde further testified that, after the delivery of plaintiff’s sheep to him and, on the eighth day of January, 1920, he sold 700 head thereof, together with 108 head of his own, to a Mr. Carey at the rate of $9 per head; that he received from Carey for the sheep a check for the sum of $7,272; that he later indorsed and delivered said check to Ramirez, with instructions to pay to plaintiff out of the money represented by said check the sum of $5,600, said sum being the total amount for which he had sold plaintiff’s 700 head of sheep at $8 per head, and to “put the balance to my credit.” At that time, Elizalde testified, he was indebted to Ramirez in the sum of $16,000.

It appears that Ramirez did not appropriate the money to the purposes for which Elizalde (so the latter testified)

“I know Vicente Biurrun, the plaintiff, and Bulalio Blizalde, the other defendant. I knew them both in the latter part of 1919 and the forepart of 1920. I did not meet Mr. Blizalde or Mr. Biurrun on or about the 26th day of December, 1919, or close to the first day of January, 1920, at the Western Hotel in Marysville. I met Mr. Blizalde. He came to my place of business at 224 C Street in Marysville, and wanted me to make a note for Mr. Biurrun. I told him to bring Mr. Biurrun here, but he said no, he is at the Western Hotel, and I said I have not got the time, but I will see if I have a blank, and I took up a blank from the Rideout Bank and rushed over to the Western, filled it out and gave it to Mr. Blizalde. I could not swear whether I saw Mr. Biurrun sign the note; I do not remember the amount of the note, and I do not know what the transaction was at all. I do not recall going to the First National Bank with these gentlemen on that day. I made the note out at the Western Hotel. Mr. Blizalde told me at that time that he wanted to give Mr. Biurrun a note, and I wrote it out as he dictated it to me, and I went right back to my place of-business. Some time about January 1st, 1920, I saw Mr. Blizalde and received some money from him, $6,272.00, I believe it was. It was on a check and when I received it I put it in the First National Bank of this city, the exact date, I do not know, about January 13th, 1920. At the time Blizalde gave me this check, he told me to pay $3,000.00 to Feliciano Goni, and he said I need the balance for feed. You deposit it for me and I will draw on you. I know Feliciano Goni. Blizalde was in the sheep business at that time. Upon receipt of this money, I paid $3,000.00 to Feliciano Goni, on the 23rd day

of January, 1920, by check upon the First National Bank. I have not got the check; I have lost it; the cancelled check was returned to me. After paying the check of $3,000.00, I still had some money in my hands belonging to Blizalde, and lie was drawing on me and I was advancing him money at that time. I did not keep one cent of the money for myself. At the time Mr. Blizalde gave me $7,272.00, he did not mention Mr. Biurrun’s name, nor did he tell me to pay it to Mr. Biurrun, the plaintiff in this action; there was not a word said about Biurrun at all. I was not interested financially in the transaction between Blizalde and Biurrun with reference to the sheep; I did not know anything about their business. Mr. Biurrun did not call at my place of business on the 1st day of April, 1920, and ask me for any money. He never at that time, or any other time, told me that Blizalde was willing to pay in sheep, and I did not tell him, ‘I will not give you the sheep or any money.’ My only reason in filling out the note was as an act of accommodation and friendship, and that ended my connection with the sheep transaction. After paying Goni, I paid out to Blizalde more than the balance that was left; I am not indebted to Biurrun on my own account; I never sold him any sheep, nor bought any sheep from him.”

Ramirez, on cross-examination, stood by his direct examination, but added that, while it was true that Blizalde was indebted to him in a large sum, he did not ask him whether he (plaintiff) ‘ ‘ could apply this check on that indebtedness, ’ ’ and that he did not so apply it. He further stated on cross-examination that "Elizalde simply gave me the check”; that “he did not tell me what the check was for”; that he “simply said pay Goni $3,000.00, and keep the balance to my account. There was not a word said about paying my bill.” He stated that when Blizalde handed him the check he (Blizalde) did not tell him that he (Blizalde) sold 700 of Biurrun’s sheep. Ramirez, further testifying on cross-examination, stated that when he prepared the $8,000 note in favor of Biurrun for Blizalde to sign, he had no conversation with Biurrun; that he merely exchanged greetings with him, and that he (Ramirez) did not “mention any sheep” to Biurrun, “nor did he to me”; that Birrun “did not tell me why he wanted this note from Blizalde”; that “Biurrun never asked me for any money” (referring to the

W. C. Owens, assistant cashier of the First National Bank of Marysville, testifying from “ledger sheet No. 1” of the account of defendant Ramirez, stated that, according to said account, Ramirez, on the thirteenth day of January, 1920, deposited the sum of $6,272, and that it also showed that on the twenty-eighth day of January, 1920, a withdrawal of $3,000 from said account was made, but that, as the check was returned to the maker on the thirty-first day of January, 1920, he had no way of ascertaining to whom the withdrawal was made.

A statement, reduced to writing, made by Elizalde in the office of an attorney on May 17, 1921 (at which time a suit by one Bastiqueta against Ramirez and Elizalde was pending), in which Elizalde declared that he gave the check mentioned to Ramirez, with directions to pay $3,000 to F. Goni on a note held by the latter against Elizalde, and to retain the balance of the check for him (Elizalde), was introduced in evidence. W. P. Rich, the attorney in whose office said statement was made, testified that he heard Elizalde make the statement that he gave the check to Ramirez with directions to pay Goni $3,000 of the check and to keep the balance thereof for him (Elizalde) ; that, in fact, that statement by Elizalde was made in response to questions propounded to him by Rich, and that thereupon the latter caused the statement to be reduced to writing by his stenographer, and that Elizalde signed it after Ramirez had explained to the former the purport thereof.

Elizalde, in rebuttal, stated that, while the signature to the written statement was his, he had no recollection of signing it; that Ramirez did not translate the writing to him.

The above embodies a comprehensive statement in substance of the testimony presented by the parties to the action.

The specific contention of the plaintiff, in support of his general contention that the decision below is afforded no support by the evidence, is that, the sum of money to which he was entitled on account of the sale of his sheep having been delivered to Ramirez by Elizalde with specific instruc

The findings thus interpreted render untenable the argument of plaintiff’s counsel, as indicated above, and, consequently, render inapplicable the cases cited in plaintiff’s brief as in support of said argument.

The contention that upon the question whether plaintiff did or did not sell his sheep to Elizalde, instead of employing the latter to feed and care for them, the decision of this court on the appeal from the judgment of nonsuit is res adjudicata, for the reason that, after the case was returned by this court to the court below for a trial thereof upon the facts, no other testimony addressed to that question was received, is without merit. In the first place, it is to be remarked that the point thus made is of no legal consequence in the decision of this appeal. [5] In the second place, it is to be observed that a judgment on nonsuit, whether by a trial court or a court of review, cannot operate as an estoppel upon the issues of fact. A motion for a nonsuit, as has often been declared in the cases, is in effect a demurrer to the evidence, and, like a demurrer to a pleading, admits the truth of the facts proved, but denies that they as a matter of law operate to sustain or support the plaintiff’s- case. It may happen, and no doubt it has happened, that, upon the very same evidence upon which a reversal of a judgment of nonsuit has been ordered the trial court may render an unimpeachable judgment upon the merits of the case in favor of defendant. The reason is that the trial court, when entertaining a motion for a non-suit, is dealing entirely with a question of law and must attach to the evidence, whether properly or improperly received, its full probative value, whereas, when deciding

[6] The contention that the findings are insufficient because they constitute or involve conclusions of law rather than findings of fact cannot be upheld. Specific findings are always to be preferred to general findings, but findings in general terms have been held sufficient where, as here, they follow the averments or denials of the complaint or answer and so decide the issue or issues submitted by the pleadings. It is true that the findings here involve, in a measure, conclusions of law. This is more or less true of nearly every set of findings made by trial courts, and it is so because the rule is that findings, as is true in pleading the facts, must be of ultimate and not of probative facts— that is to say, the findings of fact are or should be ultimate conclusions educed from the facts proved. Yet, as stated, we often find what strictly are conclusions of law properly serving the office of findings of fact. For illustration, on an issue of debt, where the court finds generally that the defendant was not, at the time mentioned in the complaint, nor at any other time, indebted to the plaintiff in the sum claimed or any other sum, we have a good finding of fact, although, strictly speaking, whether one is or is not indebted to another is also a question of law to be determined from the probative facts. [7] In the present case the plaintiff’s action, as seen, is one for money had and received. No fraud or mistake or mala fides in the handling of trust funds is or are alleged. The defendant,

[8] While the point that the court erred in admitting in evidence the written statement made and signed by Elizalde prior to the trial hereof to the effect that he directed Ramirez to pay out of the cheek the sum of $3,000 to Goni is included in the specifications of “errors in law occurring at the trial,” there is no reference to or discussion of said point in the briefs of counsel for plaintiff. We are, therefore, authorized to assume that the point is abandoned or waived. Still it may be well enough to explain why the point cannot be maintained. The only ground of objection to the admissibility of the statement was that “no foundation had been laid outside of the testimony of an interested party that he interpreted this instrument to Elizalde, that it had not been shown that Elizalde understood the contents because he cannot read or write the English language.” The statement was admissible as in impeachment of the testimony of Elizalde by virtue of the provisions of section 2052 of the Code of Civil Procedure. No objection was made that the foundation for the introduction of impeaching testimony as expressly prescribed by said section was not laid, but, if such objection had been made, it would have been without legal justification, inasmuch as Elizalde stated that he remembered the time and place at which he signed the statement and that the signature to the statement received in evidence was his, declaring, however, that he did not understand the purport thereof when he signed it. Ramirez testified that he explained to Elizalde in his own language (the Spanish) the real contents of the state

There are no other points requiring attention herein.

The judgment is affirmed.

Plummer, J., and Finch, P. J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 31, 1925.