Bendlage v. Kohlsaat

WARD, J.

Appeal from a judgment following an order sustaining defendants’ demurrer to plaintiff’s amended complaint without leave to amend.

Prom the demurrer, both general and special, and its accompanying memorandum of points and authorities, it appears that the question involved is the effect of a judgment rendered in a prior action between the same parties; in addition, the inadequacy of consideration paid following an alleged wrongful and fraudulent levy of execution, which will be hereafter referred to.

[138]

The complaint, cross-complaint, findings and judgment in the former action are annexed to the amended complaint herein and give in detail a history of the case. The answer and the answer to the cross-complaint do not appear.

In the amended complaint in the present action it is alleged that on April 20, 1937, plaintiff and defendants, Kohlsaat and Krieger, entered into a contract whereby the former agreed to sell, and the latter agreed to purchase, personal property, consisting of formulae for the manufacture of medicinal remedies, a stock of merchandise, office and other equipment used in the manufacture and sale of the remedies, and the exclusive right to the use of the -trade names “Vesodyne” and “Anthony Lily Company”; that the contract in addition to other considerations provided for the payment of a royalty based upon sales, with a provision for reconveyance for breach of this obligation.

The finding in the former case on the question of possession of the property conveyed was not outside the issues since plaintiff prayed for possession.

In that action the court found that the formulae were not secret, and that plaintiff did not and could not make delivery thereof in accordance with his representations. There is no finding that the formulae were valueless or that the products, valueless or otherwise, were sold to the public. The judgment does not rescind the contract but provides that defendant Anthony Lily Company shall retain the property, evidently upon the theory that it should be retained until formulae conforming to the representations made should be delivered, and awards monetary relief. It is not explicit as to whether sales might continue without liability or subject to royalty payments. The trial court found that defendants were not indebted to plaintiff in any amount. However, the judgment is not in excess of the court’s jurisdiction and is not so irregular in matter or form that it can be said that justice was denied. The parties, the subject matter, etc., were all before the court subject to the right of the trial court to determine the question of its jurisdiction. Refraining from passing upon the form and substance of the particular judgment presented, we may adopt appellant’s second theory on appeal, that the judgment was erroneous.