Drdlik v. Ulrich

• Court: California Court of Appeals
• Writing for the Court: BURKE
• Citation: 203 Cal.App.2d 360,21 Cal.Rptr. 642
• Parties: Frank J. DRDLIK, Plaintiff and Appellant, v. Jack ULRICH and Esther Ulrich, Defendants and Respondents. Civ. 26159.
• Decision Date: 08 May 1962

Page 642

21 Cal.Rptr. 642 203 Cal.App.2d 360 Frank J. DRDLIK, Plaintiff and Appellant,
v.
Jack ULRICH and Esther Ulrich, Defendants and Respondents. Civ. 26159. District Court of Appeal, Second District, Division 4, California. May 8, 1962.
Rehearing Denied May 29, 1962.
Hearing Denied July 3, 1962.

[203 Cal.App.2d 362] Albert A. Dorn, Los Angeles, for plaintiff and appellant.

Earl Klein, Beverly Hills, for defendants and respondents.

BURKE, Presiding Justice.

This is an appeal from a judgment of nonsuit entered against plaintiff in a nonjury trial. The parties' joint pretrial statement relates that: shortly prior to June 21, 1956, plaintiff, defendants and Elliot Robinson orally agreed they would form a corporation for the purpose of constructing two residences on two hillside lots then owned by defendants; after completion the residences were to be sold and the profits divided 40 per cent to defendants, 30 per cent to Robinson and 30 per cent to plaintiff; the two lots were to be transferred

Page 643

to the corporation for a total consideration of $7,500 which was to be paid to defendants out of the proceeds of a sale of the houses; defendants were to advance all funds necessary in connection with the project; plaintiff was to supervise the construction; Robinson was to work out the financing and related problems; and defendants were to keep all of the books and records in connection with the project.

The joint pretrial statement further provided: in accordance with their understanding the corporation was formed, under the name of Starling Homes, Inc., with the three parties acting as incorporators and officers; in accordance with a permit from the corporation commissioner stock in the corporation was issued on July 23, 1956, with four shares going to defendant Jack Ulrich, three shares to plaintiff and three shares to Robinson; deeds transferring the two lots from defendants to the corporation were never recorded; residences were constructed on the lots and the properties were ultimately sold by defendants, one on or about January 16, 1959, and the other in November of 1960; the proceeds from such sales were retained by defendants; plaintiff supervised the construction of the residences and also did various jobs on the project outside the scope of his supervisory duties; he received nothing by way of compensation from defendants in [203 Cal.App.2d 363] connection with his services; and plaintiff received a total of $842.42 as personal loans from defendants.

In his first cause of action plaintiff sought to recover the reasonable value of work, labor and services alleged to have been rendered on behalf of defendants. In a second cause of action he sought recovery for the same sum of money on the theory of money had and received. Defendants denied all of these allegations and set up a counterclaim for the loans made to plaintiff in the amount indicated.

The evidence received at the trial followed very closely the statement of facts agreed upon in the joint pretrial statement. From the testimony of plaintiff, defendant Jack Ulrich and Robinson, it became apparent that the project involved the construction of two houses designed by plaintiff on hillside lots and that in the course of construction unforeseen difficulties were encountered with the costs of the projects exceeding those which had been anticipated.

Plaintiff testified that he spent 232 hours supervising the construction of the residences and, computed at five dollars an hour, $1,160 was the reasonable value of such services. In addition, he testified he spent 1,161 hours on the job as a laborer for which he claimed he should receive payment at $2.50 an hour. He further testified that when the residences were substantially completed, lacking only an expenditure of, roughly, $350, defendants refused to supply the balance of the money necessary to complete the work and he left the project. He stated it had been unknown to him that deeds to the property had never been recorded transferring title from defendants to the corporation and that the sale of the property by defendants was made without his knowledge or consent. He stated the work he rendered as a laborer was outside the scope of supervision and that he did this work with the expectation of being compensated.

Defendant Jack Ulrich, called by plaintiff under Code of Civil Procedure section 2055, testified that plaintiff did a substantial amount of physical labor on the job. He asserted that although the original agreement had been to deed the lots to the corporation this had been changed by agreement of the parties. The building permits for the homes were taken out in the name of...