City of Petaluma v. Hickey

The plaintiff commenced an action against the defendant to recover a judgment for money. The defendant appeared and answered. The trial was had before the lower court, sitting without a jury. That court made findings of fact in favor of the defendant, and from a judgment entered thereon the plaintiff has appealed and has brought up a bill of exceptions.

The controversy is an outgrowth of a street improvement proceeding. J. E. Cavanagb et ah, owned two tracts in the City of Petaluma. The City commenced a proceeding for the opening, extending, and widening of Douglas Street. Thereafter such proceedings were had that both tracts were sold to W. J. Hickey for the nonpayment of the assessment. He paid the total sum of $6,015.02. Later the owners tendered and deposited for plaintiff’s account the amount claimed as payable on redemption and at the same time served and filed a protest. Later litigation followed. The result of one proceeding was that the owners obtained a final judgment to the effect that they were mistaken in their contention that the proceeding as a whole was invalid, but that they were correct in contending that they were not liable for $3,337.85, claimed to be due as a penalty. (Cavanaugh v. Shaver, 56 Cal. App. 758 [ 207 Pac. 275 ].) While that litigation was pending, the officers of the plaintiff caused to be paid, and did pay, to W. J. Hickey, this defendant, $10,947, whereas he had paid $6,015.02. In other words, there was paid to W. J. Hickey the total sum tendered under protest by the owners, with interest thereon, instead of the actual amount which the defendant had paid in, together with interest thereon—both payor and payee assuming that the aforesaid penalty, $3,337.85, was a legal charge

The defendant contends that the plaintiff’s complaint does not state a cause of action, and that plaintiff’s cause of action in any event is barred by the statute of limitations. On the other hand, the plaintiff contends that its complaint states a cause of action on any one of the following theories. (1) That the money was paid under a mistake of fact; (2) that the money was paid under a mistake of law; (3) that the money was impressed with a trust; and (4) that the money was illegally paid out.

In presenting the first contention the plaintiff cites some of the evidence as showing that there was a mistake of fact. The evidence does not support the contention. A reading of the entire record shows that there was no mistake of fact. Furthermore, the trial court in its findings, among others, found that there was no mistake of fact. The most that can be said in behalf of this theory is that there may be a little conflict in the evidence. This we do not concede, but even though there were a conflict, under well-established rules this court would have no power to interfere with the finding.

Turning to the contention that the plaintiff’s complaint pleads a mistake of law, it is perfectly clear that the facts of this case are not such that a court of equity will take jurisdiction and grant a decree. In the case of Goodenow v. Ewer, 16 Gal. 461, at page 471 [ 76 Am. Dec. 540 ], the court said: 11 Indeed, the weight of authority in the United States is, that the mistake, unless accompanied until special circumstances, such as misrepresentation, undue influence, or misplaced confidence, constitutes no ground for relief.” (Italics ours.) That decision has been cited and followed. (Boggs v. Fowler & Hargrave, 16 Cal. 559 , 565 [ 76 Am. Dec. 561 ]; Burt v. Wilson, 28 Cal. 632 [ 87 Am. Dec. 142 ]; Kopp v. Gunter, 95 Cal. 63 , 74 [ 30 Pac. 301 ]; Brackett v. Banegas, 116 Cal. 278 , 284 [ 58 Am. St. Rep. 164 , 48 Pac. 90 ]; Rued v. Cooper, 119 Cal. 463 , 467 [ 51 Pac. 704 ]; Cooley v. County of Calaveras, 121 Cal. 482 , 485 [ 53 Pac. 1075 ]; Wingerter v. San Francisco, 134 Cal. 547 [ 86 Am. St. Rep. 294 , 66 Pac. 730 ]; Lewis v. San Francisco, 2 Cal. App. 112 , 117 [ 82 Pac. 1106 ]; Bowman v. Payne, 55 Cal. App. 789 , 796 [ 204 Pac. 406 ].) In the case under

The contentions that the money was impressed with a trust and that the money was illegally paid out, are so interwoven that they need not be discussed separately. In support of its contention, the plaintiff cites and relies on 21 Ruling Case Law, 174. Turning to the authority cited, it appears that the text purports to be based on several cases, among which is Lamar Township v. City of Lamar, 261 Mo. 171 [Ann. Cas. 1916D, 740, 169 S. W. 12 ]. On page 189, the supreme court of Missouri states “Officers are creatures of the law, whose duties are usually fully provided for by statute. In a way they are agents, but they are never general agents, in the .sense that they are hampered by neither custom nor law and in the sense that they are absolutely free to follow their own volition. Persons dealing with them do so always with full knowledge of the limitations of their agency and of the laws which, prescribing their duties, hedge them about. They are trustees as to the public money which comes to their hands. The rules which govern this trust are the law pursuant to which the money is paid to them and the law by which they in turn pay it

Excepting the contention that the action was not commenced in time, we think the complaint pleaded facts showing a cause of action against the defendant on the theory

As we have shown above, the liability of the defendant, if any, was that of an involuntary trustee, but it has been frequently adjudged that an action against an involuntary trustee must be commenced within four years and that the statute applicable is section 343 of the Code of Civil Procedure. (Nougues v. Newlands, 118 Cal. 102 , 106 [ 50 Pac. 386 ] ; Broder v. Conklin, 121 Cal. 282 , 288 [ 53 Pac. 699 ].) The statute of limitations had run.

At all times prior to the first day of January, 1919, and during the pendency of the street opening proceeding, C. R. Wingfield, F. H. Snow, and W. J. Hickey were commissioners in the street opening proceeding. C. R. Wing-field and F. H. Snow, as such commissioners, made an order directing the payment of the moneys in suit to W. J. Hickey. From time to time the plaintiff adverts to the official capacity of the defendant. It does not contend that the defendant, as a trustee, dealt with himself and therefore violated a well-established rule of law (Shakespear v. Smith, 77 Cal. 638 [ 11 Am. St. Rep. 327 , 20 Pac. 294 ]), therefore, we see no pertinency in the foregoing facts and have not confused the record by constantly adverting thereto. If there was no authority in law to pay the moneys to the defendant, the plaintiff’s rights are the same whether defendant was or was not a municipal officer.

We find no error in the record. The judgment is affirmed.

Koford, P. J., and Nourse, J., concurred.