Blonder v. Gentile

MUSSELL, J.

This is an action to recover the sum of $10,000 due to plaintiff from defendant under the provisions of an agreement in writing, executed by the parties and one J. J. Satin on November 29, 1954. The action was tried by the court without a jury and defendant appeals from the judgment entered for the plaintiff.

The agreement was to form a mining partnership to develop some 63 claims in the Jawbone Mining District in Kern County, and provided, in part, as follows:

“3. Phillip J. Gentile hereby agrees to pay to B. Blonder, upon execution of this agreement, the sum of $10,000, payable by sixty-day secured note in consideration of the services heretofore rendered.

“4. Phillip J. Gentile agrees to advance all money necessary to survey said claims and to perform the necessary location work within the time prescribed by law.

“5.

All moneys advanced by the said Gentile shall be repaid to him out of the first moneys received from the sale of the

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properties, or any portion thereof, or, in case said properties are mined, one-half of the net profits shall be paid to said Gentile until all moneys advanced by him have been repaid....

“Signatures.

“Addendum: This agreement is to be replaced by a Nevada corporation interest reflected by stock.”

The agreement, as previously prepared, provided for the payment of the $10,000 to plaintiff in cash and the clause “payable by sixty-day secured note” in paragraph 3 of the agreement, was interlined at the request of plaintiff. He had previously staked the claims involved and his work in this connection was shown by the evidence to constitute the “services heretofore rendered,” referred to in said paragraph of the agreement.

Plaintiff testified that after he had located and staked out the claims, Mr. Gentile, Mr. Satin and a Mr. Linde made out the location papers in Los Angeles in all their names, stating that it would be easier that way than to file them in plaintiff’s name and then obtain a quitclaim deed from him to the partnership; that he signed the papers with the understanding that he would get his $10,000 before they were recorded; that after the partnership agreement was signed and the parties were discussing it, the interlineation “payable by sixty-day secured note” was interlined in the agreement; that he, at that time, asked Gentile about the $10,000 payment and Gentile replied that he “was a little pressed” and would like a little time;'that the parties wanted to form a corporation after the partnership transaction was over and they all agreed that “we would take and form a corporation after this was all settled and the $10,000 was paid to me. Well, that was put in here down at the bottom and then we would get stock for our interests in these claims. These claims would go in and then we would form a corporation, which I agreed to. Well, none of that ever took place”; that at the time he signed the typewritten agreement, as interlined, he asked Gentile for the note which he, Gentile, had agreed to execute, and Gentile said that he would “do it”; that on December 13, 1954, while at the Biltmore Hotel in Los Angeles, Gentile told him that he owed him $10,000 but that he was not going to pay it.