Pecarovich v. Becker

Decision Date29 September 1952
Citation113 Cal.App.2d 309,248 P.2d 123
CourtCalifornia Court of Appeals Court of Appeals
PartiesPECAROVICH v. BECKER et al. Civ. 15068.

Henry C. Clausen, San Francisco, for appellant.

Partridge & O'Connell, San Francisco, for respondent.

FRED B. WOOD, Justice.

Defendant Virgil D. Dardi has appealed from a judgment for $10,500 in favor of plaintiff Michael Pecarovich, in an action for salary for the years 1944, 1945, and 1946, pursuant to a contract between Becker and Pecarovich whereby Becker, as owner of the San Francisco Clippers, a professional football team, employed Pecarovich as coach.

The principal questions upon this appeal are these: (1) Does the evidence support the finding that appellant assumed the obligations toward respondent which were created by the Becker-Pecarovich employment contract, and (2) If he did, does the evidence support the finding that appellant owes respondent $10,500 under that contract?

(1) The evidence supports the finding that appellant assumed the obligations of Becker toward respondent under the Becker-Pecarovich contract of September 26, 1944. 1 He acquired from Becker a one-half interest in the San Francisco Clippers. This he did by agreement in writing executed with Becker on the 16th of October, 1944. In that agreement they recited, 'Whereas, the party of the first part [Becker] is the owner of the franchise, issued by the American Professional Football League for the city and county of San Francisco, and as a result thereof, organized and played a team, known and designated as 'The San Francisco Clippers'; and Whereas, Party of the second part [Dardi] is desirous of acquiring a fifty per cent interest in and to said franchise and said Ball Club,' and mutually agreed '1. That the said Party of the Second Part will pay to said Party of the First Part the sum of $10,000.00, receipt of which is hereby acknowledged, in payment of a fifty per cent interest in said franchise, club, equipment, contracts, players and all other assets of said Club; 2. That there are certain bills outstanding in the sum of $8130.00; that the sum of $7200.00 is a cash credit and therefore the said Party of the Second Part will contribute an equal sum, the difference between said sum of $8130.00 and the sum of $7200.00 to be paid by Party of the First Part; 3. It is further agreed that the management, control and operation of the team shall be in the hands and under the direction of Party of the Second Part and that at the end of the present playing season and upon the completion of the schedule, an accounting shall be made as between the parties and they shall divide the profits, share and share alike, and contribute in the same manner to the losses, if any. 4. This agreement may be terminated by the sale of the interest of one to the other and in the event the other does not choose to purchase the interest of the one, then it may be sold on the open market at a figure to be agreed upon by the parties. 5. The said Party of the Second Part shall keep true and correct books of account, which shall be open to the inspection of said Party of the First Part upon his request. 6. The parties shall divide the profits and settle up accounts at the end of each playing season.'

Here we find appellant saying that he desires to acquire a fifty per cent interest in the franchise and the ball club mentioned in the Becker-Pecarovich contract, the club plaintiff was employed to coach, and the franchise upon the sale of which, in whole or in part, Becker could transfer, in whole or in part, his rights and obligations under the Becker-Pecarovich contract. Next, in the October, 1944, agreement, appellant agrees that he will pay $10,000 for a 'fifty per cent interest in said franchise, club, equipment, contracts, players and all other assets of said Club.' 'Contracts' would seem quite clearly to include plaintiff's coaching contract. Were there any doubt, quite certainly it would be covered by the comprehensive phrase 'all other assets' of the Club. By the same agreement appellant became a full partner with Becker in this enterprise and acquired and assumed the 'management, control and operation' of that enterprise. It is reasonable to conclude that by their October, 1944, agreement Becker and Dardi made themselves, jointly, the employer of Pecarovich under the Becker-Pecarovich agreement.

About October 10, 1944, Becker told respondent that appellant had bought a half interest in the team and would assume active management, would run the team. Respondent was then about to leave for Seattle and Portland for games to be played there. As soon as he returned to San Francisco, about October 17, respondent went to Dardi's place of business to see him. They discussed the team. Appellant, who had previously owned an Oakland team, said he was going to bring some of those players over and wanted respondent to absorb some of them in the Clippers. He told respondent he had not received a copy of the Becker-Pecarovich contract. That day respondent took his copy of that contract to appellant, who said he wanted to make a copy, kept it a couple of days and then returned it to respondent. Concerning any discussion they had upon the return of that contract, respondent said, 'He didn't say very much, he just took it for granted. I said, 'I am going to coach?' and he said, 'Yes.' He said 'I let Mr. Brill, of Oakland, Marty Brill go, of Oakland.'' (Brill had coached appellant's Oakland team.) Asked if 'Dardi told you he was going to retain you?', appellant replied, 'Yes.' Asked if he continued to coach the team, appellant said, 'Yes, I coached the team, and I went down every day to see Mr. Dardi * * * and he had come out to all the practice and all the games, so we were very close during the entire year.' Appellant told respondent he had bought an interest in the team, that he was the boss, was running everything, and that respondent should come to appellant for anything. The publicity releases which appellant gave out to the press in the fall of 1944 concerning the team and its activities featured respondent as the coach of the Clippers. During 1944, after appellant took charge of the team, respondent received and cashed three checks drawn by Dowd, the general manager, against the team bank account: $1,000 by check dated November 5; $388.60, November 24; $1,000, December 6. Dowd testified that he took $4,500 as the basis, that being respondent's salary for 1944 as specified in the Becker-Pecarovich contract. He figured that Becker owed respondent for the five games that were played before appellant bought in and that the new management became obligated for the remaining $3,000 for the elight games that were played after that date. However, Dowd said he never discussed with respondent the basis upon which he computed this division of salary; he simply drew the checks from time to time on instructions of appellant and never told resppondent that he was paying respondent just for the games he coached after the date of the Becker-Dardi contract. The Becker-Pecarovich contract fixed the salary upon an annual basis, payable semi-monthly, not upon a per game basis: $4,500 'for the first year,' $5,500 'for the second year, and' $7,500 'for the third year of said employment, payable on the first and fifteenth days of each calendar month * * *' Since but three weeks, including two pay-days, elapsed between the execution of the Becker-Pecarovich contract and the day that respondent and appellant had their first conversation, it was reasonable for the trial court to infer from the words and conduct of appellant and the conduct of his general manager that appellant assumed the obligations and acquired the rights of the employer under the Becker-Pecarovich contract, including the obligation to pay whatever portion of respondent's salary that had accrued at the time appellant acquired a half interest in the team and took over the management.

Yet, appellant contends that when he wrote the word 'contracts' into that agreement he meant 'players' contracts,' not the coaching contract. That hardly seems plausible, especially when, as here, the writing expressly lists 'players' as well as 'contracts,' as separate items in the list of assets: 'Franchise, club, equipment, contracts, players and all other assets.' In support of his contention, appellant tendered and was permitted to introduce evidence concerning the preliminary negotiations between Becker and appellant, held October 9, 1944, at the Biltmore Hotel, Los Angeles. Dowd and a Mr. Bowen were also present. Dowd testified that there was a discussion concerning the Pecarovich contract, that he knew from the discussion there was a contract 'but at that time I never knew--we never discussed the terms of that contract, except the amount that was paid for the season, and Mr. Dardi, when this matter was brought up, told Mr. Becker and Bowen that he was not interested in Pecarovich's future or present contract, that he had Brill under contract, and as far as he was concerned Brill was going to be the coach.' Dardi testified respecting the same conversation, to the effect that he specifically told Becker he did not want the Pecarovich contract. But Becker, asked if Dardi ever told him that Dardi did not consider himself bound by the Pecarovich contract said 'No. We never discussed it.' Soon after October 9, the Becker-Dardi contract was drafted at San Francisco, and it appears that the attorney who drafted it had no record or recollection of any instruction or discussion concerning the Pecarovich contract. Thus, the evidence concerning the negotiations was in conflict, a conflict which the trial court resolved in favor of the respondent.

In addition, we have the fact that Becker had a contract for the use of Kezar Stadium. Dowd, who became general manager of this club a day or two after the execution of the Becker-Dardi contract, testified that the Kezar...

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