Smith v. Smith (38 Cal. App. 388, 1918)

HART, J.

The plaintiff, who is the son of the defendants, brought this action for the purpose of recovering the sum of five thousand six hundred dollars, alleged to have been turned over by him in small amounts from time to time during the period of his minority and for a period of time thereafter to the defendants.

The complaint alleges that, ‘-‘in the year 1906, the plaintiff . . . and the defendants . . . entered into an agreement wherein it was agreed between them that the plaintiff should engage in various occupations and that the wages' and salary earned by him should be turned over to the defendants and should be by said defendants invested in the name of said defendants and said sums of money and the income therefrom should be safely kept and preserved by said defendants and all of said sums should be upon demand of the said plaintiff turned over to said plaintiff; that pursuant to said agreement said plaintiff engaged in various occupations, beginning with the year 1906, and continued in said occupations till the year 1913; that during-said time all of the moneys earned by said plaintiff were turned over to said defendants; that pursuant to said agreement said defendants received all of said sums and agreed to hold said sums according to said agreement; that said defendants under said agreement received the sum of $5,600.” It is alleged that, “within two years last past,” the plaintiff demanded of the defendants the return of said moneys, together With thy income derived therefrom, but that the latter refused and still refuse to turn over said moneys or any part thereof to plaintiff. It should, perhaps, be stated that, while the evidence shows that the plaintiff is the son of the defendants, the complaint does not disclose the relationship existing between the parties.

The defendants by their answer deny the making of any such agreement as is declared upon by the plaintiff, or that any agreement of any kind was entered into by and between the plaintiff and the defendants by or under which the latter ever received any money or moneys from the plaintiff to be by them invested for the plaintiff and to be returned to him upon his demand for the return thereof; deny that, “pursuant to such or any agreement said plaintiff engaged in various or any occupations, beginning with the year 1906, or at any other time or at all, and continued or continued in said or any occupations until the year 1913, or.any other time or at all; deny that during said or any time or at all, all or any of the moneys earned by said plaintiff was turned over to said defendants, or either of them, pursuant to such or any agreement, and deny that said defendants, or either of them, received all of said or any sums and agreed to hold said or any sums according to said or any agreement; deny that said defendants, or either of them, under said agreement, received from said plaintiff, or from anyone in his behalf, the said sum of $5,6p0, or any sum or sums.” It is then denied that any demand was made by the plaintiff upon the .defendants for the return of any money or moneys alleged in the complaint to have been turned over by him undér the agreement pleaded in his pleading, and then follow several special defenses, among which is that of the minority of the plaintiff during the greater portion of the period referred to in the complaint and the support of the plaintiff by the defendants during said period, and that the defendants were legally entitled to the former’s earnings during his minority.

The court found that no such agreement as is set out in the complaint was ever made or entered into between the plaintiff and the defendants, and that the plaintiff never at any time turned over any money or moneys to the defendants under an agreement between the parties that such money or moneys, with the income therefrom, would, upon the demand of the plaintiff, be turned over to him by the defendants. The court further found that no demand was ever made by the 'plaintiff upon the defendants for the return of any money