Imperiale v. City and County of San Francisco

• Citation: 128 Cal.App.2d 277,275 P.2d 569
• Court: California Court of Appeals
• Decision Date: 25 October 1954
• Parties: George IMPERIALE and Joseph H. Jorgenson, Executors of the Estate of Stephen Bertone, Deceased, substituted for Stephen Bertone, Plaintiffs, Respondents and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant, Appellant and Respondent. Civ. 16011.

Page 569

275 P.2d 569

128 Cal.App.2d 277

George IMPERIALE and Joseph H. Jorgenson, Executors of the Estate of Stephen Bertone, Deceased, substituted for Stephen Bertone, Plaintiffs, Respondents and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant, Appellant and Respondent.

Civ. 16011.

District Court of Appeal, First District, Division 2, California.

Oct. 25, 1954.

Hearing Denied Dec. 22, 1954.

Dion R. Holm, City Atty., City and County of San Francisco, Thomas M. O'Connor, Public Utilities Counsel of City and County of San Francisco, Louis T. Kruger, Deputy City Atty., San Francisco, for City and County of San Francisco.

Allen Spivock, San Francisco, for Imperiale et al.

KAUFMAN, Justice.

This is an appeal by the City and County of San Francisco from a judgment in the sum of $5,000 in favor of respondent Stephen Bertone. There is also an appeal by Bertone from the portion of the judgment disallowing interest.

The complaint, filed March 28, 1949, alleged that Bertone was owner of three apartment buildings in the City and County of San Francisco, and that shortly before March 5, 1946, the Water Department of said city informed Bertone that the water meters on the three buildings had not been functioning properly for the past six or seven years, so that water had been supplied in excess of the amounts registered. The Water Department also informed him that the meters were not working properly because they had been tampered with. On March 5, 1946, the Water Department submitted bills to Bertone claiming a total of $5,258.40 for water supplied to the three buildings in excess of that registered for the years 1939 to 1945 inclusive. Plaintiff at all times objected to these claims, denied the meters had been functioning improperly during said periods and refused to pay the excess charges.

It was further alleged that on March 21, 1946, the Water Department gave written notice to plaintiff that unless he paid the above sums within three days from date the water service at the three apartment buildings would be discontinued. To avoid such a result he was forced to deposit $5,000 cash in a 'Trust Fund' with said department and received a 'Receipt' which was attached as an exhibit and incorporated in the complaint.

On May 23, 1946, revised bills were submitted to plaintiff demanding a total of $3,980.67 for excess water supplied, and the Water Department offered to return to plaintiff the sum of $1,019.33 in full settlement. Plaintiff rejected this offer of settlement.

The agreement pertaining to the 'Trust Fund' was as follows:

'Received from S. Bertone, * * * the sum of $5,000.00 to be deposited by the Water Department in a Trust Fund as a deposit to guarantee payment of unpaid charges for water delivered at the under-noted premises for the accounts of said S. Bertone, during the periods indicated.

2459 Larkin Street

For years 1940 to 1945 inclusive

626 Pine Street

For years 1939 to 1945 inclusive

665 Pine Street

For years 1939 to 1945 inclusive.

Said unpaid charges are for water claimed by the Water Department to have been delivered by it to the several premises, during the periods indicated, in excess of the amounts registered by the several meters installed at the respective premises.

'The Department having rendered bills for the excess deliveries claimed to have been made by it in the amount of $5258.40 and the said consumer S. Bertone having protested the accuracy of the estimates on which said claims of the Department were based;

'It is mutually understood and agreed that said claims will be further reviewed, and that when the amount of such excess deliveries, if any, have been finally determined in the light of all factors involved, by agreement, negotiation or court action, the charges for such excess delivery as so determined shall be deducted from the deposit, any balance remaining after such deduction to be refunded to the depositor. Should the deposit not be sufficient to meet the full amount of the bill for the unpaid excess deliveries the depositor agrees to pay to the department the balance of such unpaid claims.

'San Francisco Water Department

Joseph Conway

Manager, Water Sales Division

'I hereby accept the conditions outlined in this receipt

'S. Bertone.'

The complaint alleged that up to the present date the dispute had not been finally determined by agreement, negotiation or court action. It was also alleged that plaintiff had filed a claim prior to filing the action, with the controller, Board of Supervisors and Public Utilities Commission of the City and County demanding a return of the $5,000.

Plaintiff's second cause of action alleged that the City and County had become indebted to plaintiff in the sum of $5,000 upon a written instrument dated April 4, 1946, for money had and received by said defendants in a 'Trust Fund' for the use and benefit of plaintiff.

In a prior trial of this action judgment was in favor of the City and County of San Francisco in the sum of $3,980.67. On appeal this court reversed the judgment, Bertone v. City and County of San Francisco, 111 Cal.App.2d 579, 245 P.2d 29, 33. No new evidence was introduced at the second trial and judgment was entered in favor of Bertone and against the City and County in the sum of $5,000 without interest.

Appellant City and County reviews the evidence and contends that it amply demonstrates that Bertone owed the sum of $3,980.67 for water consumed during the years 1939-1945 in excess of that registered. Appellant says that the decision of this court in the prior action was simply a holding that the findings made did not support the judgment, and that under the evidence there could not be a finding that the agreement had been complied with in that the claims had not been determined by 'agreement' or 'negotiation.' Appellant maintains that there is nothing in the opinion that this action and the judgment in the first trial cannot be considered a 'court action' for the final determination of the claim.

The trial court after the second trial found that the decision of the District Court of Appeal referred to above had established the law of the case, and in accordance with said law of the case made the following finding:

'1. That said sum of $5,000.00, referred to in plaintiff's complaint herein, was deposited by said plaintiff with said defendant City and County of San Francisco in and as a trust fund under the written agreement between said parties dated April 4, 1946.

'2. That the dispute between said parties as set forth in said agreement of April 4, 1946 has not been determined 'by agreement, negotiation or court action'; that no court action with reference to same has been filed by said defendant, City and County of San Francisco.

'3. That on or about October 22, 1946 said defendant City and County of San Francisco took the sum of $3,980.67 out of said trust fund, without plaintiff's consent, and deposited same in the funds of its Water Department.'

Appellant contends that this court held only that the dispute had not been settled by 'agreement' 'or negotiation' in accordance with the terms of the writing, and that the present action can be considered as 'the court action.' However, the court in that case continued as follows: 'There was then clearly an impasse, and apparently nothing was left but court action. Instead of resorting to that, as the writing expressly provided, respondents took the matter into their own hands and transferred the money to their general funds. This was a clear departure from the terms of the agreement and an appropriation of appellant's $5000. Granting that a deadlock had been reached as far as negotiation and agreement were concerned, the writing still called for court action. Had respondents sued, the burden would have been theirs to prove a stale claim dating back 6 or 7 years, with no rule of the department providing for or justifying any such unusual and belated action, and with the statute of limitations confronting them as well. Although this outlook might not have appeared attractive to the department, appellant still had the right...