Johnson v. Rich

• Decision Date: 09 May 1957
• Citation: 150 Cal.App.2d 740,310 P.2d 980
• Parties: Elizabeth B. JOHNSON, Plaintiff, v. Don RICH, etc., et al., Defendant, Cross-Complainant and Respondent. International Airports, Inc., Cross-Defendant and Appellant. Civ. 22029.
• Court: California Court of Appeals Court of Appeals

Page 980

310 P.2d 980

150 Cal.App.2d 740

Elizabeth B. JOHNSON, Plaintiff, v. Don RICH, etc., et al., Defendant, Cross-Complainant and Respondent International Airports, Inc., Cross-Defendant and Appellant.

Civ. 22029.

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

May 9, 1957.

Rehearing Denied May 22, 1957.

Hearing Denied July 8, 1957.

A. J. Blackman, Los Angeles, for appellant.

Goodstein, Moffitt & Rosen, Los Angeles, for respondent.

SHINN, Presiding Justice.

Elizabeth B. Johnson, assignee of George Batchelor, Batchelor Enterprises and International Airports, Inc., recovered judgment against Don Reichgott, who calls himself Don Rich, and Ann Rich in the sum of $7,320.28 and attorney's fees, the balance unpaid on a promissory note, and a judgment against Don Rich an Fred A. Miller for $1,500 for services rendered. By the judgment Rich was awarded $7,700 upon his cross-complaint against appellant International Airports, Inc. The contentions on appeal all relate to claims of error in the trial of the issues raised by the cross-complaint of Rich and International's counterclaim to the cross-complaint.

The court determined that $7,700 was owing by International to Rich as compensation under an agreement by which International agreed to pay Rich $2 out of each $32 earned by International for the servicing of airplanes which Airline Ground Service brought to International for maintenance. (Rich and Airline were one and the same. Rich was the sole owner of Airline.) The court found that the agreement related to three transport airplanes, namely, Nos. N59483, N62528 and N1651M, the first two of which were operated by Air America, Inc., and the third by Paul Mantz Air Services. International charged for maintenance $32 for each hour a plane had been flown since the last servicing. The court found that the airplanes had been flown for a total of 3850 hours and this finding is not questioned.

The answer to the cross-complaint alleged affirmative defenses. The first alleged that Rich 'and his instrumentality, Airline Ground Service, Inc.' were the agents of Air America, Inc.; America operated four aircraft; International maintained three of them for a charge of $32 per hour; Airline paid on behalf of America maintenance charges and was reimbursed by America. It was alleged that a fiduciary relationship existed between America and Airline. No question is presented on the appeal with respect to the second affirmative defense. By the third affirmative defense it was alleged that the agreement to pay Rich $2 for each hour of maintenance service on said planes was without consideration for the reason that International already had a written contract with America for maintenance of said aircraft. The fourth affirmative defense alleged that International had entered into a contract with one Fred A. Miller and Rich on the one hand, and International on the other, under which Rich and Miller agreed to furnish airplanes for maintenance service and that they had failed to perform the terms and conditions of said agreement for the reason that payment of $2 per hour of maintenance service was conditioned upon payment in full to International of all maintenance charges against the several aircraft. It was alleged that 'said maintenance charges have never been paid.'

International filed a counterclaim to the cross-complaint alleging that on May 8, 1952 one Fred A. Miller and Rich were partners, that Miller, an agent of Rich, agreed to deliver certain planes to International for service, and claiming damages for failure of Rich and Miller to deliver planes as agreed. It was alleged that four aircraft were not delivered on the agreed dates and that a fifth (N53472) was not delivered at all. Damages were alleged in the sum of $13,644.

The points on appeal are the following: (1) Airline was the alter ego of Rich and the agent of America, with a duty to arrange for the maintenance of America's planes; Airline and Rich could not profit at the expense of America by accepting compensation from International for maintenance of America's planes; (2) any agreement of International to pay Rich for directing America's planes to International for service was without consideration for the reason that International already had a contract with America for maintaining the planes; (3) the agreement to furnish the planes for service was never fully performed; (4) the court committed error in admitting testimony as to the knowledge of Airline's directors of the Rich agreement with International; (5) the court failed to make findings upon material issues.

Before entering upon a discussion of these several contentions we are impelled to say that we have seldom been confronted with a more confusing, inadequate and unsatisfactory record in what should have been a simple case. We have found it difficult to choose between reversal of the judgment because of the manifest inadequacy of the trial proceedings, including the decision of material issues, and the onerous burden of determining whether under appropriate rules of appellate procedure the judgment can and should be affirmed.

It was admitted that Airline was the agent of America. The following were factual issues the court was called upon to decide: (1) whether America had knowledge of Rich's agreement with International for payment of so-called commissions at the of $2 per hour, and gave its consent to the arrangement (the court found that America had knowedge of the agreement); (2) whether International knew that Airline was the agent of America, had authority to place planes for maintenance and was compensated by America for the services (the court made no finding); (3) whether a certain agreement of May 8, 1952 for delivery of planes to International signed by Miller was executed on behalf of Rich as well as on his own behalf. This would depend upon the existence of a partnership between Rich and Miller with respect to that transaction, as alleged by International (the court made no finding); (4) whether the agreement to pay Rich commissions was without consideration for the reason that he was a party to the agreement of May 8th under which the planes in question had, prior to the agreement with Rich, been delivered to International for service. If Rich was a party to the May 8th agreement there would be involved the question whether that agreement was superseded by one entered into November 25, 1952 to pay Rich commissions (the court made no finding); (5) if Rich was a party to the May 8th agreement, whether that agreement obligated him and Miller to deliver to International five planes, or was only an agreement to use their efforts to deliver five planes, and if the former, whether there was a breach of the agreement and whether International was damaged thereby. The latter were material facts for the reason that International was claiming damages of $13,644 for failure to deliver the planes as agreed (there was no express finding); (6) whether there was an agreement that commissions would be paid to Rich only in the event all charges for service of the planes in question had been paid, and whether such charges had been paid prior to the institution of the action (the court found there was such an agreement but made no finding whether the charges had been fully paid).

It was found that on or about May 31, 1953, an account was stated between Rich and International and there was found due to Rich, by reason of the commission agreement, $7,700. It was also found that International became indebted to Rich for money had and received in the sum of $7,700, no part of which had been paid.

Rich sought recovery of $1,079 for overpayment on the note, but, although the decision was against him upon this claim, he has not appealed and the point as not to be considered. As previously mentioned, International was given judgment for $1,500 against Rich and Miller for personal services of plaintiff's assignor, Batchelor, as an aviation consultant. The correctness of this feature of the judgment is not in question on the appeal.

Plaintiff contends that the failure of the court to make findings on all material issues requires a reversal of the judgment. At the outset of our inquiry into this contention we note that at the direction of the court the attorney for plaintiff prepared the findings. It appears from the record that the court signed the findings, conclusions and judgment as prepared by plaintiff's attorney. The spectacle of an attack made upon the sufficiency of the findings by counsel who prepared them is a novel one in our experience although, as we shall see, it has been viewed by other courts.

It is trite to say that it is the duty of the trial judge to see that the findings dispose of the essential factual issues to his satisfaction. But it is well known that frequently, if not usually, if findings are prepared by the party directed to...