Associated Creditors' Agency v. Haley Land Co.
| Decision Date | 26 January 1966 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ASSOCIATED CREDITORS' AGENCY, a corporation, Plaintiff and Respondent, v. HALEY LAND CO., Inc., a corporation, Defendant, Cross-Defendant and Appellant, Wesley J. Mart and John Zacker, Defendants, Cross-Complainants and Respondents. Civ. 22387. |
John G. Evans, Carl Anthony, James M. Conners, San Francisco, for plaintiff, Associated Creditors' Agency.
Nathan Engelberg, Richmond, for cross-defendant, Haley Land Co.
Richard F. McCarthy, Oakland, for cross-complainants, Mart and Zacker.
This action was commenced by respondent Associated Creditors' Agency, as assignee, to recover upon certain claims assigned to it, covering goods, wares and merchandise sold and delivered to the named defendants. There were many defendants named in the orginal complaint, but those before us on this appeal are Haley Land Co., Inc., El Campo Fraternal Golf & Country Club, Inc., and Wesley Mart and John Zacker. 1 In the same action, Mart filed a cross-complaint against Haley and El Campo, seeking damaes for breach of certain oral agreements. The action was tried without a jury. The court found that Haley became indebted to respondent's assignors in the sum of $32,798. The court further found that Mart was entitled to recover from Healey the sum of $21,161.40 because of breach of an oral agreement between Mart and Haley. Upon entry of judgment for these amounts, Haley appealed.
In order to understand the issues presented by appellant Haley, it is necessary to set out the facts in some detail. The record shows that Haley is a corporation; that Dr. Samuel Levine is its president and Dr. Julius Levine is its secretary. Haley owned or controlled the real property upon which El Campo had its golf course, clubhouse and other facilities. El Campo occupied the premises under a lease arrangement with Haley. In November 1959, as a result of El Campo's inability to finance and manage its operations, and complete certain construction projects, Haley took over El Campo's facilities. In April 1960 Haley acquired an on-sale liquor license, and had it issued under the name of 'El Campo Golf Course & Clubhouse'. At all times during this controversy, the license remained in Haley's control.
It appears also that Mart, a partnership, owned and openated a bar and restaurant known as the Carriage House. In February 1960 Dr. Julius Levine was introduced to Mart and began to negotiate with Mart for the purpose of leasing to Mart the bar and restaurant, to be opened on the golf club premises. Dr. Levine represented to Mart that if Mart would sell its Carriage House operation, Haley would lease the bar and restaurant to Mart, and transfer to it the on-sale liquor license, so that Mart could conduct the bar and restaurant at the golf club. Various meetings between Mart and the Doctors Levine, representing Haley, followed. Haley's attorney prepared a proposed lease for Mart, and the terms were agreed upon. Mart sold its Carriage House business and made all necessary arrangements to open the bar and restaurant on the golf club premises. Mart repeatedly inquired of Dr. Julius Levine concerning execution of the lease and transfer to Mart of the liquor license. Dr. Levine assured Mart that the lease would be forthcoming and that the license would be transferred. When opening day arrived Mart protested to Dr. Levine that the bar and restaurant could not be opened without the lease and license. Dr. Levine replied: 'That's all right, I'll put you down in the Department of ABC as a manager at a dollar a year.' In this manner, the bar and restaurant were opened for business. During May and June, 1960 Mart continued to inquire of Haley about the lease and license, but received neither. In May 1960, unknown to Mart, Haley filed a request with the Corporation Commissioner for permission to negotiate a sale of all of its interest in the country club venture, and those of Doctors Levine to El Compo, or to purchase all of El Campo's interest. In its application, Haley recited that it had completed construction of the clubhouse, and had secured a liquor license '* * * under which it is now operating a bar and restaurant in the clubhouse.' When Mart learned these facts it made prompt inquiry of Dr. Levine and was told that El Campo would issue the lease to it and that Haley would then sell the license to Mart. Mart conducted fruitless negotiations with El Compo, seeking a lease of the bar and restaurant facilities. El Campo notified Mart that it would not give it a lease until Mart had the liquor license in its control. On July 5, 1961, with the impasse unresolved, Mart vacated the premises, leaving behind all of the furnishings and equipment, as well as the stock of liquor purchased for sale at the clubhouse premises.
One of the trial court's findings was that Haley had become indebted to respondent's assignors in various sums, for goods, wares and merchandise sold to Haley. This finding is based upon the theory that, in the conduct of the bar and restaurant on the El Campo premises, Mart was but the agent of Haley. It is true that the evidence on this issue was in conflict, but since the existence of agency is mainly a question of fact, the trial court's finding based on such evidence must be upheld. (See Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 278, 231 P.2d 816; 1 Witkin, Summary of Calif.Law, Agency, § 22, p. 401.) Appellant however, seems to contend that there was no substantial evidence to show that Mart was the agent of Haley. But there is such evidence in the record. Thus, as we have previously related, at the opening of the bar and restaurant, when Mart protested its lack of both license and lease, Dr. Julius Levine told Mart 'You will come in here as a manager until then, until that time you will be the manager of the Club. * * *' Dr. Levine also asserted that he would put Mart '* * * down in the Department of ABC as a manager. * * *' Later, after the bar and restaurant had been in operation for some time, Dr. Levine told Mart to '* * * put yourself on a wage, salary * * *' and to '* * * Put John down as bar manager and make yourself bartender. * * *' Further, in its application addressed to the Corporation Commissioner, Haley represented that it was then operating the bar and restaurant in the clubhouse. At all times here relevant, the on-sale liquor license was owned by Haley, doing business as El Campo Golf Course & Clubhouse. It was stipulated by the parties that no notice of intention to sell and transfer the business had ever been recorded and published by Haley. There was also testimony that salesmen, in soliciting to sell merchandise, customarily inquired about ownership, and often asked to see the on-sale license. There was also evidence that some merchants had knowledge that the Doctors Levine were operating the El Campo Golf & Country Club, and that suppliers and merchants doing business with retailers often exchange credit information. A Dun & Bradstreet credit report on 'El Campo Golf & Country Club, Inc.' issued in 1959, listed Dr. Julius Levine as president of the corporation. This is evidence from which the trial judge could reasonably infer that until such time as Mart obtained its lease and on- sale liquor license, its operation of the bar and restaurant was as agent for Haley.
In finding XX, the trial court found that Haley '* * * became indebted to the following creditors upon open book accounts for goods, wares and merchandise sold and delivered by said creditors to the said defendant, Haley. * * *' Then follows a list of the creditors, with a statement of the amount due each. Appellant's attack upon this finding is without merit. Appellant argues that the finding, particularly the statement that Haley 'became indebted' to the named creditors, is but a conclusion of law, and that findings, to be upheld, must state ultimate facts. But here respondent properly pleaded by a common count that defendants ...
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