Kittle v. Lang

• Citation: 107 Cal.App.2d 604,237 P.2d 673
• Court: California Court of Appeals
• Decision Date: 19 November 1951
• Parties: KITTLE v. LANG. Civ. 4413.

Page 673

237 P.2d 673

107 Cal.App.2d 604

KITTLE v. LANG.

Civ. 4413.

District Court of Appeal, Fourth District, California.

Nov. 19, 1951.

Kenneth W. Kearney, Independence, for appellant.

Willis Smith, Bishop, for respondent.

GRIFFIN, Justice.

Plaintiff's complaint alleges that for many years prior to October 1, 1949, he had been in the sporting goods business in Bishop, and had built up a valuable good will; that from October 1, 1948, to October 1, 1949, he managed such a store for another and earned $240 per month; that prior to October 1, 1949, defendant represented to plaintiff that he was anxious to enter into the sporting goods business; that defendant would invest his money is such a store if plaintiff would engage in business with him; that a partnership would be formed and plaintiff would have a one-half interest in the business, plus $50 per week pay to be deducted as business expense; and that profits would be reinvested in the business.

It is then alleged that it was further orally agreed that as a part of the agreement, plaintiff was to devote his full time to the business and to furnish certain equipment worth $1500, plus the good will, as his contribution to the partnership to be formed; that defendant would furnish the money, be a silent partner, and that articles of copartnership would be drawn accordingly.

It is then alleged that plaintiff believed defendant's representations, agreed to enter into such a contract; that he resigned from his position, removed $1500 worth of supplies to a building leased for the purpose of conducting the business, and devoted his full time to it; and that he was ready, willing and able to perform his part of the contract.

In paragraph V it is alleged that on October 1, 1949, the parties leased a building and started up business; that defendant furnished the money and plaintiff furnished his equipment and time; that the name of the business was Rush-Kittle's Sportman's Supplies; that business permits were issued and a profit resulted; and that plaintiff drew no pay except $868.00. It is then alleged that plaintiff demanded that defendant perform his contract; that he failed to do so; and that he failed to pay plaintiff's salary. It is then charged that in March, 1950, the parties moved to a new location; that plaintiff devoted his full time to establishing the business and performing his agreement; that since that date defendant denied that plaintiff was entitled to a one-half interest in the business, refused to pay his salary, and refused to enter into articles of copartnership; and that plaintiff offered to compromise with defendant for a salary of $50 per week and a one-fourth interest in the business but defendant refused to do so. It is then alleged that defendant was using plaintiff's name, his tools and equipment, and that upon defendant's refusal to recognize plaintiff's rights or to pay him a salary, plaintiff left the business on April 15, 1950.

In paragraph IX he alleges that prior to April, 1950, defendant orally represented that he would make plaintiff a partner; that he made the representations in bad faith with the intent to deceive plaintiff and to induce him to conduct defendant's business for him; that plaintiff believed the representations, devoted his time, tools and good will to defendant's business, and that thereafter a profitable business was established; that plaintiff was given no interest in the business, paid no salary (except $868.00) and that there was an entire failure and refusal on the part of defendant to perform his agreement. Plaintiff then prayed for damages, alleged that the business was worth $20,000 and that by being deprived of a one-half interest he was damaged in the sum of $10,000; that the profits would have been at least $10,000, and therefore he was damaged in the sum of $5,000; that defendant deprived plaintiff of his tools and equipment to his damage in the sum of $1500; that he was deprived of wages for 2320 hours to his damage in the sum of $2320; that plaintiff lost good will damaging him in the amount of $5,000. The general prayer is for damages in the sum of $23,820, and for such other and further relief as may to the court seem proper.

Defendant's answer contains general denials of the allegations contained in plaintiff's complaint and sets up as an affirmative defense that plaintiff executed and delivered to defendant a certain quitclaim deed which it was alleged constituted a release of defendant from any obligation whatsoever that might have existed between himself and plaintiff. (Plaintiff filed an affidavit denying the 'genuineness of said written instrument' under sec. 448 C.C.P.) He also pleaded failure of consideration.

After trial by the court it found that about October 1st, 1949, the parties entered into an oral agreement to establish the said business; that plaintiff would devote his full time to the interest of the business and furnish certain equipment, tools and supplies owned by him, as 'fully described in plaintiff's Exhibit I herein'; that plaintiff was to act as manager and receive $50 per week in addition to a salary, and a one-half interest in the business; that plaintiff performed the agreement, furnished the labor for the benefit of the business amounting to 2320 working hours; that defendant paid plaintiff $868 on account of that work but that defendant refused to comply otherwise with the terms of the oral agreement; that plaintiff continued to render services for the benefit of defendant and said business at all times prior to the removal of same to a location on Main Street, at which time plaintiff and defendant mutually agreed to terminate the purported agreement to form a partnership and that from and after the removed of said business to the new location plaintiff took over the operation and management of the bicycle repair work of said business and from and after that date defendant took over the management and operation of the sporting goods business; that at no time prior to the removal were any profits made in that business for a division between the parties; that defendant neglected to recognize any interest of the plaintiff in the business prior to its removal to its present location, and has appropriated the whole thereof to his own use and benefit to the exclusion of plaintiff; that the work, labor, and services rendered by plaintiff prior to the removal of said business were reasonably worth $2320; that $868 has been paid on this account and that there now remains owing to plaintiff for said work and labor $1452.

The court then found that defendant was in possession of 'certain items of machinery, equipment * * * more particularly described in plaintiff's exhibit I herein', which are the property of plaintiff.

In addition, it found that defendant had collected 'certain sums of money on behalf of plaintiff, as more particularly appears from defendant's testimony herein', and that plaintiff is entitled to any and all of said sums of money so collected by defendant.

The court then found that the allegations contained in paragraph X(d) of plaintiff's complaint, i. e., 'that by said breach on the part of defendant of the contract aforesaid, plaintiff was deprived of wages and earnings for labor and services rendered to defendant for a period in excess of 2320 working hours at a reasonable wage of One Dollar per hour, all to the damage of plaintiff in the sum of Two thousand three hundred twenty ($2320.00) dollars' were true, but that the other allegations contained in paragraph X were untrue. These allegations relate to the other claimed items of damage.

In relation ot the affirmative defenses alleged by the defendant, the court found that on November 15, 1949, plaintiff executed and delivered to defendant the quitclaim deed above mentioned, but that the instrument was not executed and delivered for the purpose of transferring to defendant the machinery, equipment, tools and supplies described in 'plaintiff's exhibit I herein' or for the purpose of waiving any of the rights of plaintiff for compensation for work, labor and services rendered to the business conducted by the plaintiff and defendant and that thereby the machinery and supplies were not transferred to the defendant and that the plaintiff did not thereby waive his right to compensation for work as aforesaid, and that defendant was not released from his obligation to compensate plaintiff for his work or to return plaintiff the machinery and supplies aforesaid. The court then found that the defense of failure of consideration was untrue, and further found that the fourth separate defense, which included all of the allegations of paragraph I herein set forth as to the oral agreement, the execution of a quitclaim deed releasing defendant from any obligation, and that plaintiff waived any right he had under the oral contract, was untrue.

The court then concluded (1) that plaintiff was entitled to judgment against defendant in the sum of $1452; (2) that he was entitled to judgment for the immediate delivery and return 'of all of the machinery, equipment, tools, and supplies listed in plaintiff's Exhibit I, which are now in the possession of the defendant'; and (3) that plaintiff was entitled to judgment for the immediate delivery 'of any and all sums of money collected by defendant, and by him held for and on behalf of plaintiff'. Judgment was entered accordingly, and in this same language.

It is appellant's contention that from the pleadings it is obvious that the action, as filed, was an action for damages for breach of contract which culminated in a judgment 'which seems to be an effort to...