Morrell v. Clark

• Decision Date: 20 August 1951
• Citation: 106 Cal.App.2d 198,234 P.2d 774
• Court: California Court of Appeals Court of Appeals
• Parties: MORRELL et al. v. CLARK et al. DICKER v. CLARK et al. Civ. 18204.

Page 774

234 P.2d 774

106 Cal.App.2d 198

MORRELL et al. v. CLARK et al.

DICKER v. CLARK et al.

Civ. 18204.

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

Aug. 20, 1951.

Leslie E. Hubbard and Frank L. Stearns, Los Angeles, for appellant.

A. W. Brunton, Los Angeles, for respondent L. Simon Morrell.

Wm. B. Magid, Los Angeles, for respondent L. D. Dicker.

SHINN, Presiding Justice.

Jose D. Carter conceived the plan of manufacturing a little automobile to be sold to the public for $595 each. He took as a name for his parent company, International Motor Car Company, and for a subsidiary under which he would market his cars, International Motor Car Sales Company, and he named the little creation the 'Towne Shopper.' He also adopted the unoriginal plan of obtaining finances by selling distributorships, and through the distributors, dealerships, authorizing the holders of exclusive territorial rights to sell the vehicles if and when they should become a reality. Mr. Carter operated out of San Diego under the names above stated and later as Carter Motor Car Corporation, successor to his other corporations. Defendant Irving T. Clark acquired, for a substantial consideration, the exclusive right and privilege of selling any and all the 'Towne Shoppers' and their parts in the State of California. He was authorized to appoint dealers and to sell them exclusive territorial rights. Plaintiff L. Simon Morrell, of Santa Monica, became interested and entered into a dealer's contract which gave him the exclusive right to sell the 'Towne Shopper' within the City of Santa Monica. He paid Clark $2,000 for the privilege. Henry H. Haddon acquired a dealership, paying Clark $1,500 for a franchise and $500 as a deposit on five cars. Alfred A. Ruffalo, Michael Parisi and Rudolph O. Penn each paid the same amount for a 'franchise.' Some of the money paid represented deposits on cars to be delivered later. Morrell sued Clark for the return of his money and for certain other sums as damages; Haddon, Ruffalo, Parisi and Penn assigned their claims against the defendants to L. D. Dicker. Dicker sued for the return of the money paid by his assignors. The two actions were consolidated for trial and judgment was rendered in favor of the plaintiffs. The defendants, other than Clark, defaulted. Clark appeals. The theory of the actions is for money had and received, based upon alleged fraud and failure of consideration.

In the opening brief of appellant it is said: 'The findings of fact and conclusions of law are not supported by the evidence, oral or documentary, adduced at the time of trial.' This statement is repeated as to finding No. IV and as to findings Nos. V and VI. Nowhere do we find in the briefs of appellant a statement of the evidence bearing upon these findings, nor any analysis of the same in the development of the claim of insufficiency. We are not called upon to make a critical examination of the record under such a presentation of the claim of insufficiency of the evidence. People v. One 1938 Buick Sedan, 39 Cal.App.2d 42, 102 P.2d 447; Wieczorek v. The Texas Co., 45 Cal.App.2d 450, 114 P.2d 377; California Prune, etc., Ass'n v. H. R. Nicholson Co., 69 Cal.App.2d 207, 158 P.2d 764; Goldring v. Goldring, 94 Cal.App.2d 643, 211 P.2d 342. We have nevertheless familiarized ourselves with the record.

Finding No. IV is that all the allegations of the Dicker complaint are true. Findings Nos. V and VI are that when the socalled dealers acquired their franchises and made their deposits, the 'Towne Shopper' was, and at the time of trial still remained, in an experimental stage.

The complaint in the Morrell case alleged that Clark represented to plaintiffs that a demonstrator could be delivered within 60 to 90 days, that more cars could be expected within 120 days, and that the 'Towne Shopper' had been sufficiently designed and tested to go into production. It was alleged that the representations were false, but it was not alleged they were known to be false or that Clark did not have reason to believe they were true. The evidence was no stronger than the averments of the complaint. In the several causes of action in the Dicker case it was alleged that when the various agreements were made defendants 'well knew that there were no automobiles, motor cars or parts manufactured or being manufactured or to be manufactured by said International Motor Car Company, but nevertheless said defendants did fraudulently...