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It is urged further that the appellants were guilty of laches in asserting their rights, and therefore the trust cannot be, enforced in their favor. But this position cannot be maintained. They were in possession of the property and owned the entire beneficial interest therein. The respondent was out of possession and held the naked legal title for them. They might safely rest content, therefore, until he took some steps to disturb them in their rights. It follows that the judgment and order should be reversed, and the cause remanded for a new trial.

We concur: SEARLS, C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.

(2 Cal. Unrep. 583)

MARKS v. BODIE BANK. (No. 8,703.)

Filed November 30, 1885. 1. BANK FOR COLLECTION-LIABILITY TO ACCOUNT.

Where a bank for collection, having a claim against a certain party, took certain of his notes from another party under an agreement to collect them, and, when collected, pay the proceeds thereof over to plaintiff, deducting costs and expenses of collection, and in pursuance of the agreement did so collect a portion of the notes by means of an action, judgment, and execution sale, if the proceeds were not sufficient to satisfy the demand of plaintiff, the owner of the notes, after payment of the bank's own debt and costs and expenses, neither the plaintiff nor the bank is entitled to payment in full out of the proceeds of the sale, but each is entitled to share in the proportion in which their claims against the debtor had paid the purchase price at the execution sale, and the plaintiff became entitled to his share thereof after sale

upon demand. 2. EVIDENCE-OBJECTIONS FOR INCOMPETENCY.

A refusal to strike out evidence on the ground of incompetency and immateriality is not erroneous, if such evidence was admitted without any objection being taken on these grounds. Commissioners' decision. Department 1. Appeal from superior court, county of Mono. F. V. Drake, Marcus Rosenthal, and Kittrell & Owen, for appellant. Bennett & Reddy, for respondent.

BELCHER, C. C. This is an action to recover the sum of $1,550, besides interest thereon, which it is alleged the defendant had collected and now holds for the use of the plaintiff.

From the findings it appears that the plaintiff was the owner of three promissory notes made by one Jonas Cohn, on which there was due for principal the sum of $1,550, and that on the twelfth day of May, 1880, he assigned the notes to the defendant for collection; “the defendant then and there agreeing with the plaintiff to use its best efforts to collect the same, and when collected, to pay the

proceeds thereof over to the plaintiff, deducting therefrom the necessary costs, commissions, and expenses incident to such collection;" that

the defendant at once commenced an action to recover the amount due for principal and interest on the notes, and the further sum of $804.61, which Cohn then owed to defendant; that judgment was obtained for the full amount claimed, on which execution was issued; that under the execution there was sold a large lot of clothing, merchandise, and book-accounts, the property of Cohn, which was bid in by the defendant for a sum sufficient to satisfy the execution and pay the costs of sale.. The court further found that the defendant did not purchase the goods, merchandise, and book-accounts at the sheriff's sale for its own sole benefit, but, there being no bidders who were willing to pay therefor a sum sufficient to satisfy the execution, the defendant bid the same in for the use and benefit of the plaintiff and defendant, in order to prevent a sacrifice of the goods and to secure the demands of both parties; that for want of a purchaser willing to pay a fair price for the goods, or sufficient to satisfy the plaintiff's and defendant's demands in full, only a small portion thereof had been sold by defendant, and that after applying the proceeds of the sales to the costs and expenses of the suit and sale, and the expenses of taking care of and disposing of the goods, a portion of the defendant's demand still remained due and unpaid. It was further found as a conclusion that the defendant had no money in its possession belonging to the plaintiff, and was consequently entitled to have judgment entered in his favor. The appeal is by the plaintiff from the judgment, and an order denying his motion for a new trial.

1. It was claimed for the plaintiff at the trial, and is claimed here, that the defendant had no authority to bid in the goods on his account or for his benefit, and that, having bid them in in its own name for a sum sufficient to satisfy the execution, it at once became liable to pay him the amount due on his notes for principal and interest. We do not think this claim can be maintained. The notes were turned over to the defendant for collection, and it became its duty to exercise care and diligence in trying to make the full amount of money due on them. The plaintiff estimated the value of the goods seized at considerably more than enough to satisfy the execution.

When they were offered for sale, therefore, there being no other bidders willing to take them at a price which would satisfy the execution, it appeared to be for the interest of both parties that they be bid in on their joint account, and held till they could be sold so as to make the full amount of money to which each was entitled. Looking at all the testimony, and the circumstances surrounding the transaction, we think it may fairly be concluded that the defendant was authorized to bid in the goods for the use and benefit of both parties, and that the court rightly found that it did so bid them in.

It is further claimed for the plaintiff that the court erred in refusing to strike out the testimony of the witness William Irwin, on the ground that it was incompetent and immaterial. The testimony was given without objection on this ground, and the motion to strike out

came too late. People v. Long, 43 Cal. 444; People v. Rolfe, 61 Cal. 540.

2. It was claimed by the defendant in its answer that, under the agreement made between the parties, whenever any money should be collected by any means in consequence of the action, it was to be applied—First, to the payment of the costs and expenses incurred in the action, including the attorney's fee; second, to the payment of Cohn's indebtedness to the defendant; and, third, if there should be any overplus, to the payment of the amount due on the notes of the plaintiff. There was nothing in the evidence to justify this claim. No such agreement was proved, and none could be inferred from the circumstances attending the transaction. On the contrary, we must presume that when the property was bid in for the use and benefit of both plaintiff and defendant, they became interested in it, and were entitled to share in its proceeds in the proportions in which their claims against Cohn had paid its purchase price. The title to the whole property was taken in the name of the defendant, but to the extent of plaintiff's interest it was held in trust for him. It follows that when any of the goods were sold, the plaintiff was entitled to demand and receive from the defendant his pro rata share, after paying costs and expenses, of the moneys for which they were sold. The case shows that when this action was commenced, some of the goods had been sold, and the proceeds of the sale were in possession of the defendant. The plaintiff's share of the proceeds should have been paid to him on his demand, and may be recovered in this action.

The judgment and order should therefore be reversed, and the cause remanded for a new trial.

We concur: SEARLS, C.; FootE, C.

BY THE Court. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded for a new trial.

(68 Cal. 162)
Myers v. McDonald and others. (Nos. 8,187, 8,904.)

Filed November 30, 1885.
1. RETRIAL-RIGHT TO, AFTER REVERSAL OF JUDGMENT.

Where, on appeal to the supreme court, a cause is reversed and remanded, the parties have a right to a retrial of the issues unless there is something in the opinion of the court, or the order made by it, restricting the operation of the words "reversed and remanded," and, in the absence of such restriction,

a refusal of a retrial is error. 2. CONTRACT-BREACH OF-EVIDENCE OF CONSIDERATION.

Where the consideration for a promise was that the plaintiff would not become intoxicated in a certain place and during a certain period, evidence that the plaintiff became intoxicated is admissible in an action by him to recover

for breach of such promise. 3. CONTINUANCE AS TO CERTAIN DEFENDANTS-PROCEEDING WITH TRIAL AFTER.

Where a continuance is granted as to part of defendants, and the trial is

then proceeded with as to the others, if the adverse party makes no objection thereto, before the trial was commenced, conceding it to be error, such error

cannot thereafter be taken advantage of by such adverse party. 4. FINDING OF AMOUNT “DUE,” CONSTRUED.

On an issue as to whether a promissory note had been paid or not, a finding that certain sums were “due" thereon is equivalent to a finding that such sums are owing and unpaid.

In bank. Appeal from superior court, city and county of San Francisco.

Wallace & Hastings, for appellants.
S. S. Wright, for respondent.

THORNTON, J. There are three appeals in this action; one from a judgment in favor of J. M. McDonald, another from an order refusing to set aside the judgment, (No. 8,187,) and another from a judgment in favor of M. L. McDonald. The cause came on for trial by the court on the fifteenth of January, 1881. After hearing the evidence offered, the court ordered judgment in favor of J. M. McDonald, and postponed the further trial of the cause as between the plaintiff and M. L. McDonald until the twenty-fifth of July, 1881. On this latter date, the court below orally announced that judgment would be given in favor of M. L. McDonald, and directed findings to be prepared and submitted to the court. Before the findings were signed, the attorney for McDonald directed the clerk of the court to enter the judgment rendered in his favor, and such judgment was recorded on the seventh of October, 1881. From this judgment the plaintiff prosecuted an appeal to this court. When this appeal was taken and perfected, the findings had not been signed by the judge who tried the case, and findings had never been waived. In his bill of exceptions, taken to be used on the appeal from this judgment, the plaintiff specified as the errors on which he would rely to reverse the judgment the failure to sign and file findings of fact, and errors of law occurring at the trial in the rejection of evidence offered by plaintiff. The bill of exceptions just referred to was sufficient to bring these errors before the appellate court. M. L. McDonald afterwards moved the supreme court for leave to confess error, and for an order reversing the judgment and remanding the cause for further proceedings. This motion was, on the thirteenth of March, 1882, granted, and the order was entered accordingly. The order entered was that the judgment “be, and the same is hereby, reversed, with costs, and cause remanded.” A remittitur containing this order was duly sent down to the lower court. On the filing of this remittitur in the court below, plaintiff moved that the cause be placed on the calendar for trial, as to the issues between plaintiff and M. L. McDonald. This motion was denied, and plaintiff excepted. The defendant M. L. McDonald moved the court below for leave to present findings of fact and conclusions of law on the trial of this action, for signature by the judge, and that judgment be entered thereon. This motion was granted, and plaintiff excepted. The court then proceeded to have

findings filed, and judgment entered on them in favor of M. L. McDonald.

In Stearns v. Aguirre, 7 Cal. 443, it was held that after the reversal of an erroneous judgment the parties to the action have the same rights which they originally had. This rule was approved in Phelan v. San Francisco, 9 Cal. 16, and in Argenti v. San Francisco, 30 Cal. 459. In Ryan v. Tomlinson, 39 Cal. 639, where this court had rendered judgment in these words, “Judgment reversed and cause remanded," and it was contended that such an order ended the case, so that it could not be retried, the court said:

“There is no force in the suggestion that the decision of this court on the former appeal ended the case so that it could not be retried. The order was: • Judgment reversed, and cause remande!' Unless it was apparent from the opinion of the court that the adjudication was intended to be a final disposition of the cause, the effect of the reversal was only to set aside the judgment, that a new trial might be had. This point has been several times decided by this court."

The court then cites Argenti v. San Francisco, Stearns v. Aguirre, and Phelan v. San Francisco, ubi supra, (39 Cal. 646.) Substantially the same ruling was made in Irwin v. Towne, 43 Cal. 23, and Chandler v. People's Savings Bank, 4 Pac. Rep. 502. See 2 Hayne, N. T. & App. 904–907. We understand that the above is the settled rule, unless there is something in the opinion of the court, or the order made by it, restricting the operation of the words “reversed and remanded.” In this case there was no opinion, and the order did not restrict the meaning of the words “reversed and remanded” used in it. They have their ordinary meaning, and the court erred in not according the plaintiff a new trial.

We find no error in admitting the evidence offered by defendant M. L. McDonald as to the intoxication of plaintiff. In the complaint it is averred that the promises of the defendant M. L., for the breach of which this action was brought, were made in consideration, inter alia, of plaintiff's promise not to become intoxicated within the limits of the properties of the Santa Rosa Water-works Company and the Santa Rosa Street Railroad Company, or within the limits of the town of Santa Rosa, during his (plaintiff's) superintendency of the waterworks company and of the railroad company above mentioned. The evidence was offered on this issue, and it was properly admitted.

We pass to the consideration of the appeal from the judgment in favor of J. M. McDonald. The plaintiff complains that the cause was continued as to M. L. McDonald and the trial then proceeded against J. M. McDonald alone. The record shows that such was the procedure; but when this course was adopted there was no objection by plaintiff. Plaintiff not only did not object to the procedure adopted, but amended his complaint in material matters as to defendant M. L. McDonald, on which the subsequent trial as to that defendant was had. Conceding the course taken by the court below to have been irregular, it would be improper in this court to order a reversal of

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