Opinion
As Modified on Denial of Rehearing Feb. 16, 1929
Hearing Granted by Supreme Court March 18, 1929
Appeal from Superior Court, Sacramento County; Peter J. Shields, Judge.
Action by Chun Kam against L.J. Myers, Judgment for defendant, and plaintiff appeals. Affirmed.
COUNSEL
W.H. Hatfield and V.L. Hatfield, both of Sacramento, for appellant.
Gaffney & Zagoren, of Sacramento, for respondent.
OPINION
THOMPSON, Justice pro tem.
This is an appeal from a judgment in favor of the defendant in an action in assumpsit for the recovery of money alleged to have been received for the benefit of the plaintiff.
November 1, 1923, the plaintiff leased, for the term of one year, from the estate of L.W. Myers, deceased, a portion of the ranch known as "camp 1 of the home place," situated in Sacramento county. The expressed consideration for the lease was that the "party of the second part is to receive 50 per cent. of fruit, and 65 per cent. of vegetables [produced thereon]." The lease provided for neither the time nor the manner of dividing the crops. It was, however, assumed by the respective parties that the estate was to market the crops, and that the plaintiff was to receive his proportion of the proceeds after the necessary expenses were paid. Henrietta Myers, the surviving widow of said deceased, was duly appointed and qualified as the administratrix of the estate of her deceased husband, and served in that capacity until January, 1925. She then resigned, and the California Trust & Savings Bank of Sacramento was thereupon appointed, and continued to act as such administrator. The defendant is the son of Henrietta Myers, and acted as field manager of the ranch under the supervision of the administrator of the estate. In 1924, an account was opened in the California National Bank of Sacramento, which account was entitled "L.J. Myers, Special." In 1925, after the bank became the administrator of the estate, another account was opened in the name of "L.W. Myers, Deceased; Ranch Account, L.J. Myers." These special accounts were maintained "for running the ranch." They were for the benefit of the entire ranch, including the proceeds from camp 1 of the home place. Mr. Roy Blair, an officer representing the administrator, California Trust & Savings Bank, testified that the funds of these special accounts "were the property of the estate," and that L.J. Myers was authorized to draw upon these funds for the payment of claims against the farm account, but that the administrator reserved the right to approve or reject such claims.
Pursuant to the terms of the lease, the plaintiff farmed that portion of the ranch known as "camp 1," and delivered to the agent of the estate, at the river landing, all fruit and vegetables which were produced thereon. The record is silent as to the disposition of these crops, but it may be assumed they were sold by the estate, and the proceeds deposited in these special funds, together with the proceeds from the sale of products from other portions of the estate ranch. In the fall of 1924 a written statement, purporting to itemize the receipts and disbursements incident to the farming and marketing of crops from the ranch, was made out by the defendant and handed to the plaintiff. This statement contained a charge of $481.90, which was represented by the defendant to have been necessarily expended by the estate to release it from a contract requiring the delivery of this fruit to a marketing association. Based upon this statement, a check for $2,170.88 was drawn by the defendant against this special farm fund and delivered to the plaintiff as payment in full for his share of the crops of 1924. A similar transaction occurred with respect to the division of the proceeds of the sale of the crops of 1925. It is now claimed by the appellant that he was deceived and defrauded by the false entry of the alleged payment to release the estate from its obligation to deliver the crops to the marketing association, and that the respondent holds the sums represented by these items in trust for him as money had and received for his benefit.
It will be observed that this is a simple action in assumpsit for money had and received. The action is not based upon fraud or tort. Neither the estate nor its representative is a party to the action. It was instituted against L.J. Myers in his individual capacity, and the sole question is whether he individually holds this money in trust for the appellant. An action in assumpsit for money had and received will lie against one who has been intrusted with a specific sum of money, or with property which has been converted into money or its equivalent, and which in good conscience should be returned to the owner. 19 Standard Ency. of Proc. 842, A; 2 R.C.L. 778, § 34; Biurrun v. Elizalde, 75 Cal.App. 44, 242 P. 109; In re Interborough Consol.Corp. (C.C.A.) 288 F. 334, 347 (32 A.L.R. 932). In the last-cited authority it is said: "Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity as a trustee, for a breach of trust."
In the present case, however, neither the farm produce nor the money secured by means of its sale was intrusted to the respondent individually. Upon the contrary, the produce was delivered to the agent of the estate of Myers to be sold. Sometimes the respondent received delivery of the produce as that agent, and sometimes he did not. The respondent was a mere agent for the administrator of the estate, acting in the capacity of a farm manager, and handling the special farm fund subject to the approval of the administrator. There is no evidence that this farm fund was intrusted to the respondent, with directions to pay any specific sum to the appellant. In the handling of this farm fund the respondent was constituted a trustee for the benefit of the estate. His authority was limited to the payment of claims which were subject to the approval of the administrator. The evidence discloses no relationship of trustor and trustee between the appellant and the respondent. There was no privity of contract between them as individuals, or otherwise. This farm fund included the receipts from the sale of produce from the entire farm. The proportion of the net receipts to which the appellant was entitled depended upon an accounting between him and the estate. If an erroneous statement of expenditures resulted in the payment to him of less than the appellant was entitled to, the respondent did not profit by that error. The balance still remains in the fund belonging to the estate. If a controversy exists between the appellant and the estate as to whether their account should be charged with a sum alleged to have been necessarily expended to release the estate from its contract to deliver all fruit to a marketing association, then the estate should have a right to be heard regarding this matter. Under the circumstances of the present case it may not be said that the respondent, individually had or received any specific sum of money for the appellant, or that the respondent would be personally liable in assumpsit. 17 Cal.Jur. 606, § 4; Minor v. Baldridge, 123 Cal. 187, 55 P. 783; Whittier v. Home Sav. Bank, 161 Cal. 311, 119 P. 92; Miller v. Murphy, 78 Cal.App. 751, 757, 248 P. 934; Wells v. Collins, 74 Wis. 341, 43 N.W. 160, 5 L.R.A. 531; 21 R.C.L. 852, § 31.
An agent is responsible to a third person for his wrongful acts. Civ.Code, § 2343, subd. 3. Ordinarily the remedy for such wrongful acts of an agent is by means of an action for damages for the tort. 2 C.J. 812, § § 486, 498; Minor v. Baldridge, supra. A principal is also responsible for the wrongful acts of his agent which were performed in the course of his employment, as well as for the agent’s willful omission to perform that duty. Civ.Code, § 2338; 21 R.C.L. 848, § § 28, 30. In the present case, however, the principal was not made a party to the action. It does not appear from the record that the respondent profited by his alleged fraudulent statement. He makes no claim to any portion of the special farm fund. It does not appear that he withdrew the money which is claimed by the appellant. It must therefore be assumed that this sum still remains in the special farm fund, which the evidence indicates is the property of the Myers estate.
The judgment is affirmed.
We concur: HART, Acting P.J.; PLUMMER, J.