Muller v. Barnes
| Decision Date | 15 March 1956 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Walter MULLER and Frank Muller, copartners doing business as Muller Brothers, Plaintiffs, Respondents & Appellants, v. Pancho BARNES, a/k/a Florence McKendry,Defendant, Appellant & Respondent. Civ. 21432. |
Joseph M. Wapner, Los Angeles, for Muller Brothers.
Pancho Barnes in pro. per.
As part of the consideration for the purchase of fourteen horses from Victor Cox, defendant signed a document dated September 16, 1950, reading in part as follows:
In September, 1953, Cox assigned this instrument to plaintiffs. Defendant having failed to make other than a $10 payment on the obligation, plaintiffs filed suit. Defendant answered by way of denials. She also filed a cross-complaint charging Cox with fraud and misrepresentation and that he substituted another animal for one he agreed to deliver. The court found in favor of plaintiffs on the issues raised by the complaint and answer. On the cross-complaint, the court found Cox had delivered an animal other than the one he had agreed to deliver and cross-complainant had been damaged thereby in the sum of $250. This amount was deducted from the unpaid balance of $3,190, and judgment accordingly entered for plaintiffs for $2,940. The court, however, refused to allow interest at six percent as provided in the writing.
Defendant appeals from the judgment. Plaintiffs appeal from that portion of the judgment which disallows interest.
When the case came on for trial, defendant asked leave to file an amended and supplemental answer. While the proposed pleading is not before us, defendant's brief indicates that she sought to raise the affirmative defenses of failure of consideration and rescission on the ground of fraud. At a continued hearing on March 30, 1955 (the trial started on May 7, 1954), 'defendant requested leave to amend her answer to conform to proof.' While the nature of the proposed amendment is not further disclosed, apparently defendant was still desirous of raising these defenses. The request was denied.
As a ground for reversal, defendant argues that the trial court abused its discretion in refusing her requests to amend her pleadings. Of course, to be a basis for a reversal of the judgment, it would be necessary to show that the rulings were prejudicial. This defendant has failed to do.
In considering the evidence under the allegations of the cross-complaint, the court found that Cox delivered defendant an animal other than one he had agreed to deliver and that she was damaged $250 thereby. This was a finding of partial failure of consideration. It is thus clear that this issue was actually considered under the pleadings before the court. On the question of fraud which defendant raised in her cross-complaint, the court found against her charges. Thus, not being able to prove fraud, she could not, of course, establish a rescission based on fraud. It therefore follows that defendant suffered no prejudice by the court's denial of her requests to amend her pleadings.
Defendant contends that finding V is not sustained by the evidence. In this finding the court in effect found that all the allegations of the cross-complaint are untrue except, as above noted, that she received one animal when she should have had another, to her damage in the sum of $250. As the aggressor in this phase of the case, the burden was on cross-complainant to establish her allegations. These were factual matters for the determination of the trial judge who had the responsibility, in making such determination, to pass upon the credibility of the witnesses, the weight that should be given to their testimony, and to resolve the conflicts 1 and inconsistencies, even in the testimony of an individual witness. Peterson v. Peterson, 74 Cal.App.2d 312, 319,...
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Kuist v. Hodge, B193863 (Cal. App. 2/27/2008)
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