MacBeth v. West Coast Packing Corp.

MOORE, P. J.

The administrator of the estate of Kiyoshi Nakagawa appeals from a judgment on the pleadings which denied recovery of any sum; also from the nonappealable order denying his motion for a new trial. He contends (1) that upon a motion for judgment on the pleadings nothing can be considered but the complaint, as in the case of sustaining a general demurrer, citing

Elmore

v.

Tingley,

78 Cal.App. 460, 464 [248 P. 706]; (2) that if a complaint states a valid cause of action, to avoid a trial on the facts the contents of the answer must be such as to warrant a judgment under section 437c, Code of Civil Procedure, citing

Gibson

v.

De La Salle

Institute, 66 Cal.App.2d 609, 618 [152 P.2d 774], Also, he contends (3) that even though he concede that a valid cause was not stated, it was an abuse of discretion for the court to deny his motion for leave to amend his complaint.

He alleges that on March 27, 1942, appellant’s decedent sold certain fishing nets with accessories to defendants Katnieh and West Coast Packing Corporation, herein designated as West Coast, for the sum of $4,500; that decedent thereupon immediately delivered the nets and accessories to the purchasers, who then paid the vendor $500; that the balance of $4,000 with interest is unpaid; that the agreement of sale was in writing. In a subsequent paragraph of the complaint it is alleged that corporate defendant Franco-Italian Packing Company, herein referred to as Franco, “has in its pos

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session more than Two thousand six hundred fifty ($2650) dollars of the total purchase price of said nets and refuses to deliver said amount of more than $2650 to the plaintiff though repeatedly requested by the plaintiff so to do. Said $2650 . . . was received by the defendant Franco . . . from the West Coast ...”

Respondent Katnich by answer admitted decedent’s sale of the nets to West Coast for $4,500. West Coast alleged the execution by Nakagawa of the bill of sale on March 27, 1942, and attached a copy thereof to its answer; that it paid $500 to Nakagawa and sent to him two checks of $2,000 each; that thereafter it was notified by Franco that decedent owed it $2,650 on account of said nets; that it stopped payment upon those checks and so notified decedent; that thereupon, on April 14, 1942, Nakagawa assigned to Franco $2,650 out of the $4,000 due decedent. A copy of such assignment was attached to the answer and made a part thereof. West Coast alleged also that on April 22, 1942, it issued its check in the amount of $1,350 as the balance due decedent, and sent it to the Bank of America with instructions that the bank pay the $1,350 to Nakagawa upon his surrender of the two checks of $2,000 each; that decedent did not call for the $1,350 or surrender the two checks; that in 1944, not knowing the whereabouts of Nakagawa, it cancelled the $1,350 check and “still holds that amount of money on its boobs as owing to . . . Nakagawa, and alleges that it is ready, willing and able to pay the said sum of $1350 to the said Kiyoshi Nakagawa or his legally authorized representatives upon due proof of authorization.”