Bartlett v. Rogers

HANSON, J. pro tem.-—-

This is an unmeritorious appeal from a judgment rendered in an action seeking specific performance of a contract and to enjoin the appellants from interfering with its subject matter.

The facts which are here material deduced from the evidence most favorable to the respondents are readily stated. Early in 1948 or late in 1947 the defendant-appellant Melville Rogers learned that the Los Serranos Country Club and the property of a water company which supplied water to it could he purchased as a unit for approximately $150,000. As neither appellant Melville Rogers nor his wife Consuelo were

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possessed of any capital whatsoever he sought to interest his brother Kenneth A. Rogers, a plaintiff-respondent, in purchasing the property. Kenneth, unlike his brother, was possessed of considerable financial means. Moreover, he was a golfer of some renown and retired from business and hence was attracted by the possibilities of the property. However, as the down cash payment required was about $90,000 and Kenneth could not raise more than half that sum without unduly sacrificing some of his assets, Melville sought and found in plaintiff-respondent Bartlett a person who was willing to supply one half the funds needed. Before the purchase was consummated the plaintiffs and the defendant Melville agreed that the latter should be employed by the plaintiffs to manage the country club at a salary of $6,000 annually for his services and those of his wife plus 20 per cent of the net annual profits in excess of $10,000 and free living quarters; that the balance of the net profits should be paid to the plaintiffs until such time as the moneys invested in the project by plaintiffs were repaid to them with interest at 5 per cent; that when this was accomplished the two plaintiffs and the defendant Melville were to own the properties in equal shares. At the suggestion of a third party—one McCormick, a recent arrival from Europe who posed as a doctor, but had no such degree, and was employed by the plaintiff Bartlett as her “investment counselor, ’ ’ the parties concluded that the defendant Melville should execute a note to the plaintiffs in the sum of $90,000 to evidence the investment of the plaintiffs and that it should be payable only out of the net profits of the country club operation; that title should be vested of record in Melville; that the latter should execute and deliver grant deeds of the property to the plaintiffs so that they could record them at any time they chose to do so. To carry out this agreement Melville, who was not an attorney, drafted an ambiguous contract that was supposed to carry out the terms thus agreed upon. The contract, as drafted, was executed by all the parties and is known in the record as Exhibit “A.” After the properties were acquired and documents had been executed and delivered as contemplated by the contract, the defendant Melville took over the management of the property. The anticipated profits did not materialize and the plaintiffs being dissatisfied with the manner in which Melville managed the property demanded that he leave it; that he accept $2,000 for all his right, title and interest in the property and for all his claims against the plaintiffs under a threat by the plain