Chase v. Holmes

ALLEN, P. J.

The action was one in claim and delivery. The facts as found by the court are these: Plaintiff, the payee of a promissory note for $2,000, intrusted same with defendants, a collection agency, with authority to collect, upon an agreement to pay fifteen per cent on all moneys collected thereon. The note was assigned to defendants for collection and a suit instituted, pending which a settlement was effected through which the payor paid in money to plaintiff $547.50, transferred ten shares of corporate stock, and executed a new note to the original payee for $600. Plaintiff paid to defendants the sum of $81, as commission on such collection, and transferred the certificate of stock for ten shares, under an agreement that fifteen per cent thereof, or one and one-half shares, should be transferred to defendants, and the remaining eight and one-half shares to plaintiff. The court finds that this payment and transfer were in full settlement of all accounts due defendants for effecting such settlement; that on the date of such settlement plaintiff delivered said $600 note to defendants upon the further agreement that they should retain fifteen per cent of any sum collected thereon. Defendants were unable to collect said note, or any part thereof, and shortly after its maturity plaintiff demanded possession thereof, which was refused; hence this action.

The notice of appeal was from the judgment and an order denying a new trial. More than six months having elapsed after entry of the judgment, the appeal therefrom cannot be considered.

The only matter requiring attention relates to the action of the court in denying a new trial. The specifications of error are as to the insufficiency of the evidence to support the finding with reference to the original agreement through which fifteen per cent of the moneys received should constitute defendants’ compensation, and that the sum of $81 and the transfer of one and one-half shares of stock were received by the defendants in full satisfaction of their commission'. We find evidence in the record sustaining the findings of the trial court; in fact, defendants’ evidence goes far in that direction, were that of the plaintiff to be disregarded. The note in controversy was delivered to defendants and a receipt given therefor which states that the same was received for collection. Defendants incurred no expense other than that defrayed by plaintiff; and under the agreement, evidenced by this receipt, had no.interest or claim other than the right to retain a per cent upon moneys collected. Defendants collected nothing and were not agents with power coupled with interest, and the agency existing was one revocable under section 2356, Civil Code. Plaintiff having revoked this agency, he was entitled to possession of the note.

We see no error in the record warranting a reversal of the order denying a new trial, and the same is affirmed.

James, J., and Shaw, J., concurred.