Barbachano v. Allen

• Decision Date: 07 December 1951
• Docket Number: No. 12759.,12759.
• Parties: BARBACHANO et al. v. ALLEN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

192 F.2d 836 (1951)

BARBACHANO et al. v. ALLEN et al.

No. 12759.

United States Court of Appeals Ninth Circuit.

October 31, 1951.

On Petition for Modification December 7, 1951.

Leonard Horwin, Beverly Hills, Cal., for appellant.

Lawrence W. Allen, Los Angeles, Cal., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

In 1941, the appellants recovered a judgment in the court below against Willis Allen and others. In 1950, the judgment remained unsatisfied. Appellants then moved the court for an order directing that writs of execution issue notwithstanding the lapse of more than five years since the entry of judgment.¹ The trial court found plaintiffs-appellants not guilty of laches; held that the judgment might be enforced or carried into execution irrespective of the lapse of more than five years, but ordered that the writ of execution should not be enforced against the defendant, Willis Allen, because he had, subsequent to the entry of the judgment, received a discharge in bankruptcy. Upon this appeal the sole question is as to the correctness of this order and holding as to Willis Allen.

Appellants assert that the record shows that the judgment was recovered on account of "liabilities for obtaining money or property by false pretenses or false representations" and "for willful and malicious injuries to the person or property of another", within the meaning of the second clause of § 35 of Title 11 U.S.C.A., which enumerates "Debts not affected by a discharge".

The findings, upon which the judgment in question was based, are to the effect that the plaintiffs, citizens of the Republic of Mexico, and the defendants, citizens of the State of California, entered into a certain agreement in writing whereby it was provided that the plaintiffs should procure from the Republic of Mexico a concession for a radio station to be located in that country and that the defendants would pay all deposits or fees required in connection therewith and construct the radio station at their own expense, it being understood that the plaintiffs would have to expend approximately $27,000, but that defendants would expend not less than $120,000 for the purposes mentioned. It was further found that the defendants, in negotiating the contract, represented that they were financially able and ready to perform the contract; that the plaintiffs relied upon those representations but that the representations and statements were false and known by defendants to be false; that defendants were not financially able or ready to perform their agreement; that they breached it in its entirety, and therefore the plaintiffs were compelled to provide the sums which defendants had promised but failed to produce, and that in consequence of this failure to perform, plaintiffs sustained loss in the sum of $61,060.42.

The court also found that had defendants performed the terms of their contract, the radio station might have been more promptly completed; that because of defendants' defaults the completion date was delayed for a period of five years and in consequence thereof the plaintiffs suffered an additional $15,150 in damages.

The court further found that the defendants, pursuant to plan, design and conspiracy, caused communications to be sent to various persons stating falsely that the defendants were the owners of the radio station, and that plaintiffs had no rights therein, and threatening suit against persons who dealt with plaintiffs in respect to the station; that pursuant to this plan, design, etc., the defendants wrongfully attached certain materials, supplies, equipment and apparatus belonging to the plaintiffs and acquired by them for use in the construction of the radio station, and that in consequence of the unlawful attachment the attached property could not be moved when needed to the site of the radio station, and that the construction and installation of the station was delayed so that the Mexican Government terminated the concession by reason of which plaintiffs were compelled to expend the sum of $10,000 to reinstate the concession, all to their damage in that amount.

The judgment was for $86,210.42, the sum of the aforementioned items of damage in the respective amounts of $61,060.42, $15,150, and $10,000.

In respect to the item of $61,060.42, it is apparent that the judgment for that amount does not relate to a liability "for obtaining money or property by false pretenses or false representations." It is true that the court found the false pretenses and false representations to have been made, but neither the defendants, nor any one else, obtained any money or property thereby. Hence, the liability for this sum does not come within the category of debts not affected by a discharge. Cf. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717.

Nor was this sum awarded for "willful and malicious injuries to person or property of another". The award is of damages for additional expenditures which the plaintiffs in the action were required to make by reason of defendants' failure to perform.

A like conclusion is required with respect to the item of $15,150. The court's finding with respect to that was that "plaintiffs have been damaged in the sum of $15,150 in that if said defendants had performed * * * said contract * * * they * * * would have completed the construction of said radio station and would have had the same operating within the period of 120 days * * * and thereby and under the terms of said contract said plaintiffs * * * would have become entitled without cost to themselves to the broadcast of the activities of said Rosarito Beach, Mexico, * * *; that said last named plaintiffs have been deprived of such free broadcasts by the acts and conduct of said defendants and that the value of such free broadcasts has been at the rate of $300 per month * * * or a total damage of $15,150". It thus appears that the basis for the award of this sum was neither an obtaining of property nor a willful and malicious injury to the person or property of another.

The item of $10,000 which was awarded as damages for the wrongful attachment appears in a somewhat different light.

The finding that this attachment was pursuant to a "plan, design and combination and conspiracy to commit the acts * * * complained of," that the allegations in the attachment suit were "in all respects false", that in consequence of the wrongful attachment the plaintiffs were prevented from completing the installation of the station, sufficiently shows that the recovery was "for willful and malicious injuries to the person or property of another". The wrongful attachment operated as a trespass upon the personal property of the plaintiffs.

With respect to this matter, however, appellees assert that it was not claimed in the trial court that any part of the judgment was for willful and malicious injuries to person or property and therefore this contention cannot be made here. In response to this assertion the appellants, by motion in this court, asked leave to supplement the record on appeal by furnishing the court the plaintiffs' brief filed in the court below in support of their motion to enforce the judgment. This motion to supplement the record was granted, and the brief so filed with the trial court has been furnished here. Subsequently the appellees filed their motion...