Drdlik v. Ulrich

Decision Date08 May 1962
Citation203 Cal.App.2d 360,21 Cal.Rptr. 642
CourtCalifornia Court of Appeals
PartiesFrank J. DRDLIK, Plaintiff and Appellant, v. Jack ULRICH and Esther Ulrich, Defendants and Respondents. Civ. 26159.

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 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 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 the corporation. The loans were actually taken out in the name of defendant Ulrich and his wife. Defendant Ulrich asserted he had authority from plaintiff and Robinson to sign a listing agreement for the sale of the houses and that he had discussed the value of the houses with them and had their approval to sell at the prices for which they were sold. He further testified he had made no profit on the venture. He said that he had also done laboring work on the projects.

Elliot Robinson was called as a witness for plaintiff. He stated he had talked to the Sutro Company regarding finances and that plaintiff, defendants and he had signed the loan escrow.

Defendants made a motion for nonsuit on the ground plaintiff could not recover on the first cause of action because he was a joint adventurer and without an express agreement he could not recover for his services; nor on the second cause of action because one joint adventurer cannot sue another for money had and received without first obtaining an accounting. The court granted the motion for nonsuit.

On appeal plaintiff contends: (1) the court should have denied the motion for nonsuit; (2) plaintiff was entitled to recover for all services under the theory of unjust enrichment; (3) assuming the trial court was justified in concluding that plaintiff's only remedy was to request a dissolution of the joint venture and for an accounting, it was error to grant the motion for nonsuit without an accounting; and, (4) the statute of limitations did not bar any part of plaintiff's claims.

As was stated in Sunset Milling & Grain Co. v. Anderson, 39 Cal.2d 773, 779, 249 P.2d 24, 28, "A trial court must deny a motion for a nonsuit at the close of plaintiff's case 'if there is * * * any substantial evidence, which, with the aid of all legitimate inferences favorable to the plaintiff, tends to establish the averments of the complaint, or, in other words, where the plaintiff's evidence is sufficient to support a judgment on the verdict. * * *' And as to our duty, 'The uniform rule which an appellate court should follow in disposing of an appeal from a judgment of nonsuit is, that the court must view the evidence in the light most favorable to appellant, must disregard all inconsistencies and draw only those inferences from the evidence which can reasonable be drawn which are favorable to appellant. * * *" [Citing cases.]'

There can be no doubt under the facts stipulated to and under the evidence produced at the trial that these parties agreed to and did in fact enter into a joint venture agreement for the construction and sale of the houses in question. Under such circumstances the granting of the nonsuit by the court was...

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8 cases
  • Carmichael v. Reitz
    • United States
    • California Court of Appeals
    • May 27, 1971
    ...a given issue, he cannot urge the failure of the trial court to consider the issue as error on appeal (Drdlik v. Ulrich (1962) 203 Cal.App.2d 360, 367, 21 Cal.Rptr. 642); and one cannot raise on appeal material issues which he abandons at the trial level as a matter of strategy and purely f......
  • Boyd v. Bevilacqua
    • United States
    • California Court of Appeals
    • December 16, 1966
    ...P.2d at p. 667; James v. Herbert, supra; Sadugor v. Holstein (1962) 199 Cal.App.2d 477, 483, 18 Cal.Rptr. 859; Drdlik v. Ulrich (1962) 203 Cal.App.2d 360, 365, 21 Cal.Rptr. 642; Simpson v. Winkelman (1964) 225 Cal.App.2d 746, 750, 37 Cal.Rptr. As we have said, defendants argue that the join......
  • In re B.L. Jennings, Inc.
    • United States
    • U.S. Bankruptcy Court — Middle District of Florida
    • June 12, 2007
    ...find that there is a sharing of profits and losses, but it is not required that the distribution needs to be equal. See Drdlik, 203 Cal.App.2d at 364-65, 21 Cal.Rptr. 642. In addition, one party's right of control may be delegated to another. Stilwell, 178 Cal.App.2d at 621, 3 Cal.Rptr. 285......
  • Cobin v. Rice
    • United States
    • U.S. District Court — Northern District of Indiana
    • May 5, 1993
    ...dissolution of the partnership or joint venture, a settlement of its affairs and an accounting." Similarly, in Drdlik v. Ulrich, 203 Cal.App.2d 360, 366, 21 Cal.Rptr. 642 (1962), the court (quoting Cunningham v. deMordaigle, 82 Cal.App.2d 620, 621-22, 186 P.2d 423) stated Partners cannot su......
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