Cherry v. Hayden

MOORE, P. J.

Appellants demand a reversal of a money judgment on the grounds that (1) the evidence does not support it and (2) the trial court grievously erred in its rulings.

Respondent .is the assignee of American Athletic Company, a copartnership composed of Joseph Szabo, Solomon Szabo and Maury W. Wayne. Assignors haying a verbal option on lots

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owned by appellants for $18,500 caused plans and specifications for the construction of a two-story industrial building to be prepared by their, own architect and obtained a bid from an engineering company in Pasadena to erect the building for $157,000. Thereafter, appellants offered to construct the building for $150,000 if assignors would purchase two other lots from appellants at the price of $29,000 or $31,000. Also, the latter offered to furnish the service of their architect whose compensation would be included in the cost of the building. However, they required a deposit of $5,000 to apply against the contract price. Having agreed on the basis of appellants’ proposals, assignors paid them $5,000 and received from appellants a receipt as follows:

“Culver City, Calif.

May 25th, 1946

“Received of the American Athletic Company, 1630 S. Flower St., Los Angeles, California, the sum of Five Thousand Dollars ($5,000) in payment for Architect and Brokerage Fees in designing of Plans and Specifications for the construction of a building on Lots 55 and 56 Tract 13503.

“In the event that the American Athletic Co. decides not to construct the building then the above Five Thousand Dollars is to apply on the Architectural and Brokerage fees. In the event that the plans are approved by the American Athletic Co., the above amount will be returned in full.

(Signed) Hayden Investment Company”

In the course of work, appellants’ architect suggested numerous changes in the plans but no suggestion was made that the proposed modifications would entail additional cost of construction to assignors. Upon Szabo’s return from New York in August, he was notified hy Sam Hayden that on account of the “various changes and everything else, the cost of the building was much higher, and that he couldn’t possibly make it for the price he had agreed to build it for ... he would have to have $195,000 instead of $150,000.” Upon Szabo’s suggestion that if appellants could not incorporate the several 'changes they should go hack to the original plan which they had agreed to build for $150,000, Hayden stated that he did not wish to have anything to do with it; that “the unions had socked him for additional increases in labor . . . and his cost had gone up . . . just forget about the whole deal.” After their several demands for the return of the $5,000, assignors transferred their claim to respondent who