Wendt v. Ross

Citations

• 33 Cal. 650

Syllabus

<p>Action fob Monet Had and Received.—Where the complaint charges that A., being indebted to plaintiff in a sum of money, it was agreed between A., plaintiff, and defendant, that A. should pay the same to defendant, who should pay the same to plaintiff on the request of plaintiff, that thereafter A. paid to defendant said sum in the gold coin of the United States, to and for the use and benefit of plaintiff, that defendant refused to pay the same to plaintiff upon said request duly made ; an action to recover said sum in said coin is an action for money had and * received, and therein the defendant is not charged, nor, upon said facts, chargeable as a bailee.</p> <p>Defect in Pleading, when Waived.—The objection for a nonjoinder of all the proper parties as plaintiffs, where the defect does not appear upon the face of the complaint, must be taken by answer, else the objection will be deemed waived. Conflict of Evidence.—Where the evidence is conflicting upon any of the issues of fact, this Court will not be warranted in disturbing the verdict of a jury or other decision upon such issues.</p> <p>Judgment fob Hold Coin.—Where, in an action for money had and received, it appeared that defendant received the sums demanded in gold coin and gold dust, all of which he entered in his account book as cash,” a verdict for plaintiff for said sum “ in gold coin ” will not be set aside as contrary to the evidence. Application of Payments.—Where money is paid generally, upon an account composed of different items, made at divers dates, and no appropriation thereof is made by either party to any particular part of the account, the rule is that the payment shall be applied to the charges in the order of time in which they are made.</p> <p>Idem.—Where payments are made generally to a party having two accounts against the party paying—one due to himself, the other to a third party, for whom he was acting as agent-—and no appropriation of such payments to either account is made by eit