Stamler v. Kissinger

California Court of Appeal Dec 30, 1952 No. Civ. 18668Published

Before: McCOMB

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Holding. The court held that the evidence supported the trial court's findings regarding the existence and validity of the joint venture agreement, that the corporate agent was not an indispensable party, and that the plaintiff was entitled to an accounting following the defendants' repudiation of the agreement.

Issues

Was there substantial evidence to sustain the trial court's findings?
Was there substantial evidence to sustain the finding that the joint venture agreement had not been rescinded or abrogated?
Was the corporation an indispensable party to the action?
Was the plaintiff entitled to an accounting?

Disposition. Affirmed; appeal from order denying new trial dismissed.

Quotations verified verbatim against the opinion

“We have examined the record and find substantial evidence to sustain each and every finding of fact upon which the trial court’s decree was predicated.”

“it is apparent that the corporation was merely the agent of defendants and that it had nothing to do with the joint venture agreement between plaintiff and defendants.”

“Defendants on December 12, 1949, repudiated their agreement with plaintiff. Thereupon plaintiff became entitled to an accounting”

McCOMB, J.

Defendants appeal from a judgment in favor of plaintiff after trial before the court without a jury in an action for an accounting of the assets, receipts, disbursements and net profits of a joint venture. There is also a purported appeal from the order denying a new trial.

Facts: The evidence being viewed in the light most favorable to plaintiff (respondent) discloses that plaintiff and defendants entered into a joint venture agreement on March 19, 1947. Plaintiff, a subdivider and general building contractor, owned a tract of land containing 19 lots. Defendant Kissinger was a building contractor. Defendant Nu-Mode Homes, Ltd., was a partnership composed of Kissinger, Hayes and Deethardt engaged in the business of constructing dwelling houses.

Under the joint venture agreement of March 19, 1947, plaintiff agreed to deliver the tract fully improved, ready for building, to the venture at an agreed total price to him óf $33,250. He also agreed to submit the tract and building program to a lending institution for approval of construction loans and also for F.H.A. He was to retain title to the lots until sold but agreed- to sign all trust deeds and necessary-.papers for completion of construction loans. When all

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the lots were sold and after payment of costs and deductions, the net profits were to be divided equally.

Nu-Mode agreed to erect and deliver the units upon a cost plus 10 per cent basis and to employ the services of Kissinger and Hayes in connection therewith. After the joint venture agreement had been executed, the three individual defendants on November 5, 1947, entered into an agreement with Kissinger & Hayes Corporation reading in part as follows:

“1st. That the second party hereto (Kissinger & Hayes, Inc.) take and hold title to said building lots,

for first parties hereto

from the said Sidney Stamler for the total consideration of $31,824.00 for which the second party agrees to execute trust deeds in like amount in favor of said Sidney Stamler, said trust deeds to be drawn in accordance with escrow instructions at the Bank of America in Burbank and to contain release clauses on a basis of $1750.00 per lot plus a charge of $18.00 per lot for water meter installation, making a total payment of $1768.00 for each release.

Stamler v. Kissinger

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