Muller v. Barnes

Decision Date15 March 1956
Citation294 P.2d 505,139 Cal.App.2d 847
CourtCalifornia Court of Appeals Court of Appeals
PartiesWalter 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.

FOX, Justice.

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:

'Pancho Barnes promises and agrees to Pay to Vic Cox the sum of Three Thousand and Two Hundred and No cents ($3200.00) within one year from the date of this agreement. However Pancho Barnes agrees that all monies from the sale of any of the above stock shall be paid to Vic Cox as soon as is possiable (sic.) until the full amount of $3200.00 shall have been paid. The unpaid balance shall bare (sic.) an interest of six per cent (6%) per annum.'

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.

Defendant's Appeal

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,...

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13 cases
  • Chesapeake Industries, Inc. v. Togova Enterprises, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • December 14, 1983
    ...785 [reaffirming Hansen and holding that unliquidated counterclaims do not affect the character of the debt]; Muller v. Barnes (1956) 139 Cal.App.2d 847, 850, 294 P.2d 505.) One effect of this rule is to encourage mitigation of damages. (Coleman Engineering Co. v. North American Aviation, I......
  • Ralston Purina Co. v. Parsons Feed & Farm Supply, Inc.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 27, 1969
    ...Freeman, 251 Iowa 18, 99 N.W.2d 388, 392 (1959); Knutson v. Lasher, 219 Minn. 594, 18 N.W.2d 688, 696 (1945); Muller v. Barnes, 139 Cal.App.2d 847, 294 P.2d 505, 506-507 (1956); Matthew A. Welch & Sons v. Bird, 193 A.2d 736, 739 (D.C.Ct. App.1963). We have the impression that in some of the......
  • Leaf v. Phil Rauch, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • April 22, 1975
    ...(1933); Worthington Corp. v. El Chicote Ranch Properties, Ltd., 255 Cal.App.2d 316, 322, 63 Cal.Rptr. 203 (1967); Muller v. Barnes, 139 Cal.App.2d 847, 850, 294 P.2d 505 (1956); Lacy Mfg. Co. v. Gold Crown Mining Co., 52 Cal.App.2d 568, 579, 126 P.2d 644 (1942).) Since the requirement of Ci......
  • Kuist v. Hodge, B193863 (Cal. App. 2/27/2008)
    • United States
    • California Court of Appeals Court of Appeals
    • February 27, 2008
    ...an unliquidated setoff . . ., interest is properly allowed on the balance found to be due from the time it became due." (Muller v. Barnes (1956) 139 Cal.App.2d 847, 850 [internal quotations omitted]; see also General Insurance Co. v. Commerce Hyatt House, supra, 5 Cal.App.3d at pp. 474-475 ......
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1 books & journal articles
  • Full Compensation, Not Overcompensation: Rethinking Prejudgment Interest Offsets in Washington
    • United States
    • Seattle University School of Law Seattle University Law Review No. 30-03, March 2007
    • Invalid date
    ...Inc. v. Union Sugar Co., 289 P.2d 785, 793 (Cal. 1955). 249. See California Lettuce Growers, Inc., 289 P.2d at 793; Muller v. Barnes, 294 P.2d 505, 507 (Cal. Ct. App. 250. See California Lettuce Growers, Inc., 289 P.2d at 793; Muller, 294 P.2d at 507. 251. See Hunt Foods, Inc., 248 F.2d at ......

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