Kauffman v. Bobo & Wood

• Decision Date: 01 September 1950
• Citation: 99 Cal.App.2d 322,221 P.2d 750
• Court: California Court of Appeals Court of Appeals
• Parties: KAUFFMAN et ux. v. BOBO & WOOD et al. Civ. 7790.

Page 750

221 P.2d 750

99 Cal.App.2d 322

KAUFFMAN et ux. v. BOBO & WOOD et al.

Civ. 7790.

District Court of Appeal, Third District, California.

Sept. 1, 1950.

Chadeayne & Wilkinson, Tracy, for appellants.

Popper & Burnstein, Oakland, for respondents.

ADAMS, Presiding Justice.

On this appeal the sufficiency of the third cause of action contained in plaintiffs' second amended complaint is alone involved. To that count the trial court sustained a demurrer, on both general and special grounds, without leave to amend. The only question presented here is whether or not the said court erred.

It is well established that a general demurrer must be overruled if, on any theory, it states a cause of action, Lord v. Garland, 27 Cal.2d 840, 853, 168 P.2d 5; Johnson v. Clark, 7 Cal.2d 529, 536, 61 P.2d 767; and that it shall not be sustained without leave to amend if it is subject to amendment to state a cause of action, People v. Turlock Home Tel. & Tel. Co., 200 Cal. 546, 550, 253 P. 1108; Finch v. McKee, 18 Cal.App.2d 90, 95, 62 P.2d 1380; Starr v. Slaney, 11 Cal.App.2d 311, 314, 53 P.2d 395; Tann v. Western P. Ry. Co., 39 Cal.App. 377, 381, 781 P. 971; and that it is error to sustain a special demurrer without leave to amend if a cause of action is stated or can be stated, Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 104, 114 P.2d 1; Columbia Pictures Corp. v. DeToth, 26 Cal.2d 753, 762, 161 P.2d 217, 162 A.L.R. 747; Olivera v. Grace, 19 Cal.2d 570, 579, 122 P.2d 564, 140 A.L.R. 1328; Wennerholm v. Stanford Univ. School of Medicine, 20 Cal.2d 713, 719, 128 P.2d 522, 141 A.L.R. 1358; Jensen v. City of Modesto, 89 Cal.App.2d 835, 837, 202 P.2d 332; Kraft v. Smith, 24 Cal.2d 124, 132, 148 P.2d 23.

Also pleadings and amendments thereto should be allowed and construed liberally with the object of affording every litigant his day in court and to render substantial justice between the parties. Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 42, 172 P.2d 867; Buxbom v. Smith, 23 Cal.2d 535, 542, 145 P.2d 305; Jackson v. P. Gas & Elec. Co., 95 Cal.App.2d 204, 208, 212 P.2d 591.

If a complaint is good as against a general demurrer, a trial court may in its discretion require the clarification of uncertainties or ambiguities therein. Columbia Pictures Corp. v. DeToth, supra; Guilliams v. Hollywood Hospital, supra.

Also it is elementary that on appeal from a judgment on demurrer it must be assumed that all the facts are as alleged since the filing of the demurrer constitutes an admission that all allegations well pleaded are true. Jensen v. City of Modesto, supra, 89 Cal.App.2d at page 837, 202 P.2d 332, and cases there cited.

Plaintiffs' prayer was for the sum of $80,000 and for general relief, it being alleged that plaintiffs suffered loss to that extent by reason of fraudulent promises and acts on the part of defendants. Defendants assert in their brief that the fraud alleged by plaintiffs consists only of promises made by defendants to perform acts in the future which, when not fulfilled, are not actionable unless made without any intent, at the time same were made, to perform same.

The third cause of action alleged: That defendants were copartners, operating certain food and novelty sales concessions in various Greyhound Bus depots in California and were administrative and supervisorial employees of Pacific Greyhound Lines, Inc.; that plaintiffs had been operating a hotel and restaurant in Colfax, California, where they also acted as ticket sales agent for Greyhound on a commission basis; that a new bus depot was to be built in Tracy, California, and that defendants entered into a fraudulent and corrupt conspiracy and agreement to acquire ownership and control of the restaurant business and ticket agency to be established in that depot, by persuading plaintiffs to give up their Colfax business and come to Tracy to operate the restaurant and ticket agency, whereupon defendants, by means of economic pressure and their position of authority with the Greyhound Lines would force plaintiffs out of the business and that defendants would then acquire said business for no or only nominal consideration that defendants' fraudulent conspiracy was effectuated by having defendant Wood approach plaintiffs and represent to them that he would help them get the Tracy station, and that he would also put up one-half of the money needed, but as a silent partner so that Greyhound Co. would not know of defendant Wood's connection with the business; that plaintiffs relied on defendant Wood's representations, sold their Colfax business, and went into the Tracy operation; that while plaintiffs were expending large sums of money (cash and debts) totaling about $60,000, they continually called on defendant Wood to put up his share and he finally contributed a total of only $8,500; that this put plaintiffs in a precarious financial position, so as to be subject to the aforementioned economic pressures; that plaintiffs were not aware of defendant Bobo's connection as defendant Wood's partner until about the time they opened the Tracy business in October, 1946; that in January, 1947, plaintiffs were informed that the $8,500 which Wood had provided was not money belonging to defendants, but came from a corporation--Swiss Maid--and had to be repaid to that corporation; that defendants then represented and promised plaintiffs that if plaintiffs would pay back the $8,500 to Swiss Maid, plus $1,500 more to pacify the stockholders of Swiss Maid, defendants would pay their full share into the business shortly and would help plaintiffs to borrow enough money to pay off the business debts; that defendants would also acquire certain real property to be rented to plaintiffs as parking space, and would also convey to plaintiffs an undivided one-third interest in food and novelty concessions in Greyhound depots at Merced, Madera and Fresno; that plaintiffs thereupon paid $6,000 in cash and made a note for $4,000; that defendants made only a very slight token compliance (detailed in the complaint) with these latest promises; that defendants did not even have any interest in the concessions at Madera, Merced and Fresno; that finally, in further pursuance of their fraudulent and corrupt conspiracy to cheat and defraud plaintiffs, defendants proposed an agreement which would settle and adjust...