Landry v. Marshall

Decision Date24 June 1966
CourtCalifornia Court of Appeals Court of Appeals
PartiesHarvey LANDRY, Plaintiff and Respondent, v. John MARSHALL and Fra-Marc Corporation, a corporation, Defendants and Appellants. Civ. 29505.

Frank E. Munoz, Los Angeles, for appellants.

No appearance for respondent.

LILLIE, Justice.

Plaintiff sued defendants in three causes of action--for fraud and deceit, breach of contract and money had and received; writ of attachment followed. Defendants moved to dissolve the same and filed with their notice of motion affidavits and certain exhibits; plaintiff filed opposing affidavits. The matter was referred to a court commissioner for findings and recommendations; based upon his findings of fact he recommended to the court that the motion be granted and the writ be discharged, and the court so ordered. Thereafter, pursuant to section 259a(2), Code of Civil Procedure, plaintiff filed a motion taking exception to the findings and recommendations of the commissioner and order dissolving attachment; after a hearing thereon, the court granted plaintiff's motion to vacate the previous order dissolving the writ, found the second cause of action of the first amended complaint to be sufficient to sustain the writ of attachment, and entered an order denying defendants' motion. Defendants appeal from the order.

Plaintiff's first cause of action alleged fraud and conspiracy in connection with certain oral representations made by defendants relative to a written exclusive franchise for the sale and distribution in Arizona of 'Fertile Rain,' a liquid fertilizer, and the delivery of the fertilizer, perfected metering devices, supplies, equipment, advertising and training necessary to promote the sale and distribution of the product. 1 Plaintiff's second cause of action is for breach of contract. He alleges that on July 14, 1963, he and defendants entered into the following oral contract--in consideration of plaintiff's payment of $30,000 to defendants, the latter were to 'immediately' deliver to plaintiff a written exclusive franchise for distribution of 'Fertile Rain' in Arizona; 'promptly' provide him with all necessary equipment to operate the franchise, including a perfected metering device for the fertilizer, supplies, equipment and sales literature; spend for advertising and promotion 30$ per gallon of fertilizer sold; provide field training and assist in the operation of necessary equipment; and have 'immediately' available to him for shipment to customers sufficient amounts of 'Fertile Rain' that plaintiff could satisfy customer orders for the then current season, specifically, 30 drums of fertilizer to be shipped to his order within three days after payment of the $30,000--that time was of the essence of said contract; that he paid the $30,000 on August 14, 1963, but defendants 'failed to perform all or any one of the terms and conditions of the oral contract'--no written exclusive franchise was ever offered or delivered to him; equipment in good working order necessary to conduct a franchise operation was not provided when requested by him 'and in time for the then current marketing season'; money for advertising, assistance, field training and promotion of the product were never provided, although requested; and there was 'not immediately available' when requested any amounts whatsoever of 'Fertile Rain,' and 'when such product finally became available it was in such limited quantity and so defectively packaged that plaintiff was unable to utilize such product for sales to customers during the then current marketing season,' and that as a direct and proximate result of such breach of contract he was damaged in the sum of the total consideration paid to defendants by him, or $30,000. The third cause of action is in a common count for money had and received.

Annexed to defendants' motion is the declaration of defendant Marshall. He asserted delivery of all materials due plaintiff in accordance with their agreement, shipped in accordance with plaintiff's instructions; that plaintiff breached the contract by refusing to sign the franchise agreement and by conspiring with one Folden to drive him out of business; and that plaintiff commenced manufacturing liquid fertilizer chemicals and pumps in direct competition with defendants. The affidavit of Casey Folden asserts that plaintiff refused to sign the written franchise agreement on August 21, 1963; that plaintiff purchased $30,000 worth of 'Fertile Rain' and metering devices, and necessary equipment for sale and distribution thereof by him to customers; that all was of merchantable quality and fit for the purpose designed and used by plaintiff; that he was induced to enter into an agreement with plaintiff to form a corporation for the manufacture and sale of 'Fertile Rain'; and that plaintiff admitted that the purpose of bringing the suit was to force defendants into bankruptcy so that he might ultimately secure all right, title and interest of defendants in 'Fertile Rain' and fertile mix and other necessary materials.

In opposition to these affidavits, plaintiff filed several counter-affidavits. In his own (affidavit of Harvey Landry), he specifically denies the accusations in defendants' declarations and, among other things, alleges that he has 'received absolutely no consideration in return for $30,000 expended in reliance on defendants' oral agreement'; that on August 17, 1963, when he did not receive the 30 drums of fertile mix concentrate, he called defendant Marshall 'demanding shipment per our contract'; that no shipments were made until After the middle of September 1963, and then, only part shipment was received, which shipment was improperly sealed so that the major amount of the concentrate was lost; that the wrong type of fertile mix pumps were 'so that the pumps and the concentrate could not be used as per (his) marketing plan'; that immediately upon receiving the shipment, he protested its tardiness to defendant Marshall and advised him of the improper sealing; that he was promised full redress immediately, both as to the concentrate and the defective pumps; that defendants made no such redress despite numerous oral and written requests therefor; that in the beginning of October 1963, he orally demanded of defendant Marshall that he return to him his $30,000 and that he take back the tardy and imperfect shipment, which Marshall refused to do; that he made numerous similar oral demands to Marshall pointing out to him that he was guilty of fraud and misrepresentation in connection with the oral contract; that 'the combination of imperfect pumps plus tardy and improperly sealed concentrate rendered completely Valueless the shipment sent to (him) by defendants'; that he 'requested Marshall to take back all equipment and following his refusal to do so (he) placed all equipment outside of (his) possession and in the hands of third parties'; and that he 'never received ONE DOLLARS worth of consideration for the $30,000 given to defendants under the aforesaid oral contract.' The declaration of Hensley asserts that no written franchise agreement was ever proffered to plaintiff for his signature; that necessary equipment for the marketing of 'Fertile Rain' was never sent to plaintiff with the exception of some defective metering devices in the fall of 1963; that no usable amount of sales literature was ever sent to plaintiff; that although plaintiff requested shipment of 30 drums of 'Fertile Rain' within three days of August 14, 1963, no shipments were forthcoming until the middle of September when ten to fifteen percent of the order was shipped 'but at a date too late for the then current marketing season,' also the said shipment was so defectively sealed that it was rejected by a number of 'Fertile Rain' dealers, and the metering devices in limited number were not in good working order and not marketable; and that defendant did not provide plaintiff 'with any property of useful working value.'

Section 537, Code of Civil Procedure, provides in pertinent part: 'The plaintiff. At the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered * * * in the following cases:

'1. In an action upon a contract, express or implied, for the direct payment of money, (a) where the contract is made or is payable in this state; * * *.'

Appellants' sole contention is that the attachment should have been dissolved because the second cause of action does not fall within that class of cases in which attachment will issue (§ 537(1), Code of Civ.Proc.); they claim that it is an action on a contract to do something other than pay money--to deliver goods and services, citing Willett & Burr v. Alpert, 181 Cal. 652, 185 P. 976; California Packing Corp. v. Kato, 45 Cal.App. 491, 188 P. 57; Allen v. Merchants Elec. Co., 54 Cal.2d 67, 4 Cal.Rptr. 527, 351 P.2d 799; Sturtevant v. K. Hovden Co., 60 Cal.App. 696, 214 P. 244, and Mauss v. Kato, 117 Cal.App. 663, 665, 4 P.2d 179. Their argument fails because it is predicated on the facts contained in their affidavits: that there was no failure of consideration because plaintiff received 'most' of the goods and materials; and that plaintiff did not rescind the oral contract because he neither offered to return nor returned to them any of the materials received by him.

While respondent has not seen fit to appear in this appeal, we can accept neither the statement of facts set out in appellants' opening brief nor those alleged in the affidavits annexed to their motion to dissolve the writ of attachment. They are in direct conflict with those alleged in plaintiff's counter declarations (§ 557, Code Civ.Proc.) and verified amended complaint which stood as an affidavit on the hearing on the motion in the lower court (San Francisco Iron etc. Co. v....

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6 cases
  • Samuels v. Superior Court of Los Angeles County
    • United States
    • California Court of Appeals
    • 19 d5 Setembro d5 1969
    ...General Insurance Co. of America v. Howard Hampton, Inc. (1960) 185 Cal.App.2d 426, 430--431, 8 Cal.Rptr. 353; Landry v. Marshall (1966) 243 Cal.App.2d 170, 176, 52 Cal.Rptr. 119.) Joinder of the contract count with other counts claiming damages which are unliquidated or which sound in tort......
  • Whitney Inv. Co. v. Westview Development Co.
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    ...it should clearly indicate to the defaulting party that the injured party considers the contract terminated. (See Landry v. Marshall, 243 Cal.App.2d 170, 177, 52 Cal.Rptr. 119.) Moreover, although the evidence disclosed a partial breach by plaintiffs, there was evidence from which the court......
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    ...courts have recognized a claim for money had and received in the context of a franchise relationship, citing Landry v. Marshall (1966) 243 Cal.App.2d 170 and Runyan v. Pacific Air Industries, Inc. (1970) 2 Cal.3d 304. Those cases are inapposite; both addressed claims based on the franchisor......
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    ...contract, whether implied in fact or implied in law. McCall v. Superior Court, 1 Cal.2d 527, 531-532 (1934); Laundry v. Marshall, 243 Cal.App.2d 170, 175(1966). The Court finds that these requirements are satisfied here. The breach of contract counts alleged in the FAC seek recovery of $3,9......
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