Zingheim v. Marshall
| Decision Date | 27 March 1967 |
| Citation | 249 Cal.App.2d 736,57 Cal.Rptr. 809 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert J. ZINGHEIM, Plaintiff and Respondent, v. Robert S. MARSHALL and Gordon A. Rogers, Defendants and Appellants. Robert J. ZINGHEIM, Plaintiff and Respondent, v. Gordon A. ROGERS, Defendant and Appellant. Civ. 8151, 8152. |
Fizzolio & Fizzolio, North Hollywood, and Edward L. Lascher, Oxnard, for defendants and appellants.
Kimball, Jones & Kelly, San Diego, for plaintiff and respondent.
Appeals have been taken in two actions consolidated for trial; separate judgments were given based upon separate findings of fact. In both actions plaintiff recovered judgment: in action #275082 against Gordon A. Rogers (Rogers), and in action #262878 against Robert S. Marshall (Marshall) and Rogers. Both defendants have appealed.
Prior to November 24, 1958, plaintiff operated commercial radio broadcasting station XEMO in Tijuana, Mexico. The station was licensed under Mexican law to one Fernando Ferreira (Ferreira), a Mexican national. Under Mexican law, only a Mexican national of native birth or a Mexican corporation whose shares have been issued only to Mexican nationals may hold such a license.
At the same time plaintiff operated an agency with a San Diego office for the sale of advertising time on XEMO.
On October 20, 1958, plaintiff gave a 30-day option to Rogers and four other persons not party to the present litigation to purchase the agency and the physical equipment of XEMO.
Before the expiration of the option period, Rogers communicated with plaintiff not for the purpose of exercising the option but to arrange to purchase the agency and XEMO for himself.
A written agreement was prepared by plaintiff's attorney by which plaintiff agreed to sell the agency, all accounts receivable and XEMO to Marshall, who was acting for Rogers, who did not wish his name to appear in the agreement. Originally the agreement was dated November 20, but that date was changed to November 24, on which date it was signed. Rogers said he did not wish the date of November 20, because it was too close to the option expiration date.
The agreement contained the following provisions:
'Radio Station XEMO in Tijuana, Baja California, Republic of Mexico, is presently in the name of Fernando Federico Ferreira, and shall be transferred to such person of Mexican nationality or such Mexican Corporation as Robert S. Marshall shall designate.
'* * *Sta
Following the signatures of plaintiff and Marshall was the written guaranty of Rogers to pay the purchase price of $40,000 in the manner provided.
On a separate sheet was an agreement signed by Ferreira which reads as follows:
'FOR VALUE RECEIVED, I hereby agree to be bound by the terms of the contract dated November 24, 1958, between Robert J. Zingheim and Robert S. Marshall, and further agree to transfer the license for Radio Station XEMO in Tijuana, Baja California, Republic of Mexico to such person of Mexican nationality or such Mexican Corporation as Robert S. Marshall shall designate.'
All the persons named were present at the time of signing. Everyone knew that Rogers was the real party in interest in the purchase. Rogers had been informed by plaintiff and knew from other sources that Mexican law required that the licensee be a Mexican national or a Mexican corporation.
Subsequently Rogers went with Ferreira to Mexico City to have a Mexican corporation formed to which the license might be transferred; there Rogers was advised to have the corporation formed in Tijuana to avoid the necessity of holding the meetings in Mexico City. Rogers and Ferreira returned without having had the license transferred. Thereafter Rogers did not designate to Ferreira, during the latter's lifetime, anyone to whom Rogers wished the license to be transferred.
In 1959, a California corporation had been formed, known as Radio 860, Inc., to which the agency, accounts receivable and physical assets of XEMO were transferred.
The buildings housing XEMO were destroyed by fire on April 1, 1960. Previously Rogers had purchased land in Mexico for re-locating the station, which land he placed in the name of Ferreira.
Following the fire of April 1, 1960, XEMO went off the air about February 1961. It resumed operation at the new location on September 2, 1961. It was necessary that it resume operation to keep the license alive. With the exception of one transmitter purchased by Rogers, practically the entire cost of the new building and equipment was borne by Ferreira with borrowed money. Rogers refused the opportunity of taking over the operation upon the condition of paying those costs.
Ferreira died March 23, 1964.
On June 30, 1964, Rogers' attorney made demand on Ferreira's attorney that the license be transferred to a certain nominee.
Rogers never demanded of plaintiff that the license be transferred.
Rogers made his last payment to plaintiff on account of the purchase price on November 17, 1960.
The contract of November 24, 1958 provided that the purchase price of $40,000 be paid in monthly installments of not less than $300 with a provision for a larger payment when net billings for advertising sold in the previous month exceeded a certain amount. There was a provision for acceleration in the event of default.
Before an actual delinquency occurred, plaintiff filed action #240878 in the superior court for the entire balance, upon the theory that monthly payments of more than $300 should have been but were not made. Marshall was the only named defendant.
Marshall answered and cross-complained through counsel furnished by Rogers. The cross-complaint sought rescission and recovery of the amounts paid based upon claims of fraud and misrepresentation and of the illegality of the contract. There were other counts seeking damages.
Rogers testified as a witness in defense of the action and in support of the crosscomplaint.
The trial court, in findings dated December 9, 1961, found that there had not been a default before the action commended; because 12 payments had become due up to the date of the judgment, judgment was given for those amounts totaling $3,600; plaintiff was denied any attorney's fees under the contract; the allegations of the cross-complaint as to fraud and illegality were found to be untrue. The following conclusions also were made:
'V That nothing in this judgment should be construed as an adjudication of the duty of the plaintiff to bring about a transfer of the license and radio station in Mexico from Fernando Federico Ferriera (sic) to the defendant, and that the findings in this action are without prejudice to the determination in a future action as to that duty.'
Judgment was entered accordingly against Marshall. No part of that judgment had been paid up to the time of trial of the present action.
The present actions were filed in March 1962. Action #262878 was commenced against Marshall and Rogers to recover the unpaid balance of the purchase price. The complaint alleged that the November 24, 1958 contract was entered into by Rogers through Marshall as his agent; it alleged the filing of action #240878 and the findings therein with regard to the legality of the contract and the judgment rendered.
Action #275082 was commenced in the municipal court against Rogers, seeking to recover the amount of the judgment that had been rendered in action #240878 against Marshall, based upon Rogers' agreement to guarantee the payments by Marshall. Rogers cross-complained for a sum in excess of $50,000 and the case was transferred to the superior court.
It was stipulated that defendant Rogers supplied the counsel in action #240878 and had a proprietary interest in the outcome, and that on the date of execution of the November 24 agreement Marshall was acting as the agent of Rogers. Based upon this stipulation, the court held that the findings of fact, conclusions of law and judgment in action #240878 were Res judicata as to defendants in the cases at bench and that evidence intended to show the illegality of the November 24 contract was, therefore, inadmissible.
The court issued findings stating that: Rogers, for valuable consideration, contracted to guarantee the payments by Marshall; Rogers had actual notice of action #240878 and was sworn as a witness therein; Rogers supplied counsel in action #240878 to Marshall and controlled the litigation thereof; in the November 24 contract, Marshall agreed to transfer the license; plaintiff, under that contract, was not obligated to obtain a transfer of the license; plaintiff has performed all the covenants under the agreement; there has been no failure of consideration or occurrence of conditions affecting the obligation; Rogers' performance was not conditioned on the procurement of transfer of the license by plaintiff; and Rogers' guaranty was given for a valuable consideration. Based upon these findings, the court concluded that Marshall was acting within the scope of his employment when he executed the contract; further, that Rogers is bound by the findings of fact, conclusions of law and judgment in...
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