[Civ. Nos. 647, 648. First Appellate District.-September 17, 1909.]

CHARLES SAMUELS, Respondent, v. GROVER B. LARRIMORE, Appellant.

ACTION FOR MONEY LOANED PLEADING SUFFICIENCY OF AVERMENT OF NONPAYMENT.-In an action for money loaned and advanced to the defendant by plaintiff's assignor a complaint averring "that within two years last past defendant became indebted" to said assignor in a specified sum "for so much money loaned and advanced at the special instance and request of said defendant," and after averring the assignment, avers "that no part of said indebtedness has been paid and that there is now due, owing and payable from defendant to plaintiff on account of said indebtedness said sum," sufficiently avers nonpayment of said sum specified.

ID.-CONSTRUCTION OF "INDEBTEDNESS"-REFERENCE OF FACT TO SUM

SPECIFIED.-The word "indebtedness" is not used in the complaint as a "conclusion of law," but as matter of fact referring to the sum specified as being "for so much money loaned and advanced." ID.-AVERMENT OF DEMAND NOT ESSENTIAL.-The complaint need

not aver a demand made for payment of the sum due before suit. The complaint is, of itself, a sufficient demand.

ID.-ANSWER SHOWING DEMAND UNAVAILING.-The answer sufficiently shows that a demand before suit would be unavailing where, in addition to denying the indebtedness, it alleges that the debt is not due, and was to be repaid only "when convenient," or "when business has picked up," each of which events is alleged not to have occurred.

ID.-FINDING AGAINST ANSWER-CLEAR SHOWING REQUIRED LAPSE OF REASONABLE TIME BEFORE SUIT.-It would require a very clear showing to satisfy any court that a bargain of the kind alleged in the answer was made. General expressions of that character, if used, only indicate that payment is expected to be made within a reasonable time, which must be deemed to have expired, where the money was advanced about a year before suit, and the court was justified, under the circumstances, in finding against the claim set up in the answer.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. E. P. Mogan, Judge.

The facts are stated in the opinion of the court.

11 Cal. App.-22

Jos. J. Webb, for Appellant.

Leon Samuels, for Respondent.

COOPER, P. J.-These two appeals are in separate records, but they will be considered together, as one is an appeal by defendant from the judgment against him, and the other from the order denying his motion for a new trial, and the questions are all considered together in the briefs filed by counsel.

The complaint is as follows: "That within two years last past said defendant became indebted to one Frank A. Whitman, in the sum of $635.86 for so much money loaned and advanced to said defendant by said Whitman at various times during said period at the special instance and request of said defendant. That prior to the commencement of this action said Whitman assigned, transferred and set over unto plaintiff said claim, demand and cause of action against said defendant. That no part of said indebtedness has been paid, and that there is now due, owing and payable by said defendant to said plaintiff on account of said indebtedness said sum of $635.86, together with interest thereon at the legal rates from the date of such loans and advances."

The complaint concludes with the usual prayer for judgment for the amount claimed.

The first contention of appellant is that the court erred in overruling his demurrer to the complaint. His argument is that the complaint does not allege nonpayment. The contention is entirely devoid of merit. After alleging the facts as to how the indebtedness arose and the amount thereof, the allegation is "that no part of said indebtedness has been paid." The word "indebtedness" is not here used as it has sometimes been in the body of a pleading, in which the courts have said that it was a conclusion of law. As it is here used in the last paragraph of the complaint it refers to the said sum of $635.86, which it is alleged had been loaned and advanced to defendant at his special instance and request. Any person of ordinary understanding would know that the pleader, by the word "indebtedness" as here used in said. paragraph, refers to the sum which he had alleged had been advanced to defendant by plaintiff's assignor.

Nor is there any merit in appellant's claim that the plaintiff should have alleged a demand of payment. The complaint is of itself a demand; and not only this but the answer of defendant shows that a demand would have been unavailing. Defendant in one part of his answer denies the indebtedness, and in another and separate part he alleges that the money was advanced to him by plaintiff's assignor upon the understanding that he was to repay it only when convenient to him, and that "it has not been convenient for said defendant to repay any portion thereof to said Whitman.'

The appellant further urges that the evidence is insufficient to sustain the findings because, as he contends, the money was to be repaid only "when convenient or when business picked up." This question was passed upon by the trial court, and in our opinion the evidence justifies the findings. It certainly is not the ordinary way of doing business for one man to advance money to another upon an express understanding that the one receiving the money will be allowed to repay it. or not according to his own idea as to "convenience," or as to "business picking up." It would require a very clear case, we apprehend, to satisfy any court that such a bargain was made. In fact in all cases where there is a general conversation by the party advancing money, or delivering property as to "taking your own time to pay," or "use your own convenience to pay," or "You can pay me when able," the courts as a general thing hold that the payment should be made within a reasonable time. When a friend advances money to another and uses such expressions, he does not intend to give the money; he expects the party to act honorably, and not to repudiate the debt, but to repay it within a reasonable time. It is not to be presumed that a man would receive money under such circumstances from a friend, and when the money is sought to be recovered use the very expressions of confidence, kindness and friendship as means to defeat a recovery.

There are cases in which it has been made clearly to appear that the intention of the party or parties furnishing the money was to leave it entirely at the option of the party receiving it to repay it or not; in other words, to the sense of honor of the party receiving it. Such is not this case. The moneys were advanced to defendant about a year before this

action was commenced. Defendant cannot complain that he did not have a reasonable time within which to repay it. The judgment and order are affirmed.

Kerrigan, J., and Hall, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on October 15, 1909.

[Civ. No. 661. First Appellate District.-September 17, 1909.] D. A. CURTIN, Appellant, v. J. W. INGLE, Respondent. ACTION FOR VALUE OF UNUSED BAGS-AUTHORIZED ACCOUNTING TO THIRD PERSON-LAW OF CASE-PROPER FINDING AND JUDGMENT.In an action for the value of unused bags not returned to plaintiff's assignor, where the evidence, without conflict, is the same as upon the last appeal, upon which it was determined that defendant was authorized, and in duty required to account for the same to a third party, and that such third party accepted the same and offered them for sale, the trial court could not do otherwise, under the law of the case, than to find for the defendant, and enter judgment accordingly, upon that cause of action.

ID.-COUNT FOR MONEY HAD AND RECEIVED FINDING AGAINST EVI

DENCE REVERSAL.-In a count for money had and received, where the evidence for the plaintiff is without conflict showing the balance due to plaintiff's assignor for money advanced upon a shipment of oats by the defendant in excess of the net proceeds thereof, the finding and judgment for defendant on that count must be reversed and the action retried thereon.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Thomas F. Graham, Judge.

The facts are stated in the opinion of the court.

Cannon & Freeman, W. M. Cannon, and E. F. Treadwell, for Appellant.

Wal J. Tuska, for Respondent.

HALL, J.-Appeals from judgment in favor of defendant and order denying plaintiff's motion for a new trial.

Plaintiff sought to recover for eleven thousand five hundred and nineteen grain bags, being a portion of fourteen thousand five hundred alleged to have been delivered by Moore, Ferguson & Co., the assignors of plaintiff, to defendant, to be filled with grain and shipped to Moore, Ferguson & Co., or accounted for, and if not accounted for to be paid for at seven cents each. It is alleged that eleven thousand five hundred and nineteen of the fourteen thousand five hundred bags were never accounted for.

In a separate count plaintiff also sought to recover $34.50 for money had and received by defendant to the use of said Moore, Ferguson & Co.

The court found that defendant had duly accounted for all of said fourteen thousand five hundred bags, and also that defendant did not have or receive to the use of Moore, Ferguson & Co. the sum of $34.50 or any other sum of money.

Appellant in his brief attacks these findings as not supported by the evidence.

The case has been before the supreme court upon two former appeals.

Upon the first appeal judgment in favor of plaintiff and the order denying defendant a new trial were reversed for error in excluding material evidence offered for defendant (Curtin v. Ingle, 137 Cal. 95, [69 Pac. 836, 1013]).

Upon the second appeal the court had before it substantially the same evidence concerning the principal cause of action as in the record before us. The plaintiff then relied upon the very same writings as constituting the contract with defendant as are relied upon now. The court held that under the contract upon which the bags were delivered to defendant he was not required to account directly to Moore, Ferguson & Co., but could account to one Crosby, and that the evidence showed without conflict that he did account to Crosby for the bags (Curtin v. Ingle, 143 Cal. 354, [77 Pac. 74]). The court there said: "There is no evidence in the record tending to show that it was ever agreed that any of these bags should be returned empty by defendant to plaintiffs at San Francisco. The contract left it optional with defendant to use and pay