[No. 13751.

Department Two.

June 11, 1892.]

#### H. F. PINSON, Appellant, *v.*WILLIAM SCHMALZ, Respondent.

Agency — Shipment of Goods to Order of Principal — Request of Agent Disregarded — Action by Agent for Proceeds — Money Had and Received. — Where coffee was shipped to the defendant by the plaintiff in his own name, but as the agent of third parties with whom defendant had dealings, and a previous understanding that they were to ship their coffee to him, and the shipper gave instructions to hold the coffee to the order of such third parties, and at the same time preferred a request to the defendant to send a bill of goods to the shipper to be charged to such third parties, the plaintiff cannot maintain an action against the defendant to recover the proceeds of the coffe.e as money had and received to the use of plaintiff upon demand therefor made after defendant had accounted to such third parties for the coffee, as requested by them, notwithstanding defendant did not send the goods to plaintiff, as requested by him, it not appearing that plaintiff had any interest in or lien upon the goods, or made any claim, except for the cash proceeds of the coffee.

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion.

*H. B. M. Miller,*for Appellant.

*Nathan Vidaver,*for Respondent.

Vanclief, C.

Action for money had and received for the use of the plaintiff. Judgment for defendant, from which, and from an order denying his motion for a new trial, the plaintiff appeals.

The facts upon which plaintiff’s demand is founded are substantially as follows: —

On July 15, 1888, the plaintiff, then residing at Ocos, Guatemala, shipped to defendant in San Francisco, by steamer, sixty-one sacks of coffee in his own name as shipper, but for account of Messrs. Kunze & Duran, of Guatemala, with whom defendant had dealings, and a previous u iderstanding that they were to ship their cof*652fee to him. By the same steamer defendant received from plaintiff, who was then unknown to defendant, the following letter: —

> “ Ocos, July 15, 1888.

“ Mr. William Schmalz, San Francisco.

“ *My Dear Sir,*— By steamer of the 14th I sent to you sixty-one sacks of coffee, in gold, in accordance with letter of advice and bill of lading, by the agency of this port. The said lot you will please hold to the order of Messrs. Kunze & Duran, of the Rodeo Company. At the same time, I request you to send me by the next steamer the inclosed bill of goods, charging me with the amount, to the above-named gentlemen. Please to send me directly this consular invoice and bill of lading. Believe me, Yours truly,

> “H. F. Pinson.”

After defendant had accounted to Kunze & Duran for the coffee, as requested by them, the plaintiff demanded of defendant the proceeds of the sale thereof; and upon the defendant’s refusal to accede to this demand, plaintiff commenced this action to recover such proceeds. It is admitted that, in shipping the coffee, plaintiff acted as the agent of Kunze & Duran, and it is not pretended that he had any interest in or lien upon the coffee, or that Kunze & Duran were indebted to him for commissions, or upon any amount whatever, except for the cash proceeds of the coffee.

It appears that defendant did not send plaintiff the goods, as requested in the above letter, but it is not pretended that defendant was under any obligation to do so.

I think the judgment and order should be affirmed.

Foote, C., and Belcher, 0., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.