Levitt v. Glen L. Clark & Co.

MOORE, P. J.

From a judgment against the corporate defendant only it has appealed on the ground that the contract of the parties violated master price regulation No. 445, promulgated pursuant to the federal Emergency Price Control Act of 1942 [56 Stats. 23, 50 U.S.C.A.App. § 901 et seq.]

In January, 1945, respondent agreed to procure for appellant the right to purchase specific brands of whisky from agents of a Canadian distillery for which service respondent was to receive a commission of 50 cents for each case of such liquor thereafter delivered to appellant.

[663]

Subsequently, appellant paid respondent 50 cents per case for certain brands of whisky purchased from and delivered to it by such agents. But a dispute arose over respondent’s claim of $3,500 as commission on 7,000 other cases of whisky purchased by appellant from such agents. The court found that respondent was entitled to commissions on 3,500 such cases and that appellant became indebted to respondent in the sum of $1,750 on or about November 1, 1946. It is now contended that by reason of the violation of regulation No. 445 appellant’s contract was contrary to public policy, consequently invalid and therefore cannot support the judgment.

Such defense was not raised by the pleadings, was not supported by any evidence, and was not the subject of findings. In the absence of appropriate affirmative allegations of the nullity of a contract it is incumbent upon him who maintains its invalidity to allege facts constituting such condition, and if its terms do not disclose such character he must negative the existence of any circumstances whereby it could be held valid.

(Bernard

v.

Sloan, 2

Cal.App. 737, 748 [84 P.

232]; Gelb

v.

Benjamin,

78 Cal.App.2d 881, 884 [178 P.2d 476].) When the invalidity of a contract has not been raised in the trial court it will not be considered on appeal.