Douglas v. Bergere

• Decision Date: 25 October 1949
• Court: California Court of Appeals Court of Appeals
• Parties: DOUGLAS v. BERGERE et al. Civ. 16670.

Page 727

210 P.2d 727

94 Cal.App.2d 267

DOUGLAS v. BERGERE et al.

Civ. 16670.

District Court of Appeal, Second District, Division 3, California.

Oct. 25, 1949.

Fleming, Robbins & Tineman, Los Angeles, for appellant.

Reynolds, Painter & Cherniss and Louis Miller, Los Angeles, for respondent A. L. Bergere.

No appearance for respondent Wm. P. Andrews.

VALLEE, Justice.

Appeal by plaintiff from a judgment for defendants in an action for damages for the alleged breach of an oral contract to deliver shares of stock to plaintiff.

Douglas Oil & Refining Company is a corporation. Pursuant to a preorganization agreement between appellant Douglas, respondents and one Stratton, 110,000 of its common shares were issued to respondents Bergere and Andrews, 55,000 shares to each. The stock is called 'nickel stock' as it was purchased at five cents a share. The corporation needed additional funds. About November 1, 1941, appellant and Stratton on the one hand, and Bergere and Andrews on the other, made an oral contract whereby Douglas and Stratton agreed to assist in raising the additional funds, and Bergere and Andrews agreed to transfer 55,000 shares of the nickel stock to them. Douglas claims Bergere and Andrews jointly and severally agreed to transfer 55,000 shares of nickel stock to himself and Stratton. Respondents claim the contract was several and that it was agreed Bergere was to transfer 27,500 shares of nickel stock to Stratton and Andrews was to transfer 27,500 shares of nickel stock to Douglas. Douglas and Stratton performed and the additional funds were secured. Thereafter Bergere transferred 27,500 shares of nickel stock to Stratton and Andrews transferred 13,252 shares of nickel stock and 14,248 shares standing in the name of Comet Oil Company, Ltd., to Douglas. Comet was a limited partnership, of which Andrews was sole general partner.

Comet was adjudicated bankrupt about one month after the transfers to Douglas. Andrews was adjudicated bankrupt about five months later. The bankruptcy proceedings were consolidated. The trustee instituted proceedings against Douglas to recover the stock delivered to Douglas by Andrews or its value. A compromise was effected between the trustee and Douglas, which was approved by the bankruptcy court, by which the 14,248 shares transferred by Andrews to Douglas were transferred by Douglas to the trustee and the proceedings instituted by the trustee dismissed with prejudice.

The complaint sought recovery of damages for the alleged refusal of Bergere and Andrews to transfer 14,248 shares of nickel stock to Douglas. The court found that: Stratton was agent for Douglas; the contract was several; Bergere agreed to and did transfer 27,500 shares of nickel stock to Stratton; Andrews agreed to transfer 27,500 shares of nickel stock to Douglas; Andrews, pursuant to instructions of Stratton as agent of Douglas, and pursuant to agreement between Douglas and Stratton, transferred to Douglas 13,252 shares of nickel stock and 14,248 shares standing in the name of others, but which had arisen out of the 55,000 nickel shares belonging to Andrews, and which were the subject of the original contract; Bergere and Andrews performed all covenants and conditions of the contract.

Appellant Douglas contends that (1) respondents are jointly and severally liable; (2) the findings are not supported by the evidence.

Civil Code, section 1430 reads: 'An obligation imposed upon several persons, or a right created in favor of several persons, may be: 1. Joint; 2. Several; or, 3. Joint and several.' Civil Code, section 1659 reads: 'Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several.' The presumption is not conclusive. Code Civ.Proc., sec. 1962. It is rebuttable but controls in the absence of evidence to the contrary. Gummer v. Mairs, 140 Cal. 535, 537, 74 P. 26. It may be controverted by other evidence. Code Civ.Proc., sec. 1961. When controverted by other evidence an issue of fact is made for the determination of the trial court and its conclusion is conclusive upon a reviewing court unless it is clearly unsupported by substantial evidence. Simonton v. Los Angeles Trust & Sav. Bank, 205 Cal. 252, 258, 270 P. 672; Siegell v. York, 84 Cal.App.2d 383, 388, 191 P.2d 50; In re Estate of Ades, 81 Cal.App.2d 334, 337, 184 P.2d 1; Leathers v. Leathers, 77 Cal.App.2d 134, 141, 174 P.2d 875. The Restatement defines a several promise as follows: 'Where two or more parties to a contract promise separate performances, to be rendered respectively by each of them, or where each of them makes only a separate promise that the same performance shall be rendered, each is severally bound for the performance which he promises and is not bound jointly with any of the others.' Rest., Contracts, sec. 113; see, also, Spangenberg v. Spangenberg, 19 Cal.App. 439, 126 P. 379; Los Angeles National Bank v. Vance, 9 Cal.App. 57, 60, 98 P. 58; 17 C.J.S., Contracts, §§ 349, 352, pages 805, 807. In determining whether the promises were several or joint and several, when uncertainty arises concerning the meaning of a contract, the language used by the parties is to be considered in the light of the surrounding circumstances and of the practical and mutual construction placed thereon as shown by their acts and conduct before any controversy has arisen between them. Johnston v. Landucci, 21 Cal.2d 63, 70, 130 P.2d 405, 148 A.L.R. 1355; Universal Sales Corp. v. California Press Mfg. Co., 20 Cal.2d 751, 761, 128 P.2d 665; Eggert v. Pacific States Savings & Loan Co., 57...