Karallis v. Shenas

GRIFFIN, J.

This action was before this court on two prior appeals.

(Karallis

v.

Shenas,

41 Cal.App.2d 694 [107 P.2d 395], involving a nonsuit judgment of dismissal; and

Karallis

v.

Shenas,

66 Cal.App.2d 475 [152 P.2d 499], in which the facts are rather fully stated.) Suffice to say that the plaintiff and one Callas, as copartners, operated a restaurant in a building they leased from the defendant. Callas died in 1931, and through the estate proceedings defendant purchased at least his interest in the restaurant for $1,000. Plaintiff contended that through certain fraud and misrepresentation he was induced to sell and permit the sale of the business to defendant and to loan the defendant $1,000 with which to purchase the estate’s interest in the business, on the agreement that the defendant would repay him the $1,000 plus $1,059.40 owed to the plaintiff by Callas and secured by a note and chattel mortgage on the restaurant fixtures,

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and that he and the defendant would then operate the restaurant as equal partners. Defendant contended that there was no such agreement; that he bought the entire business from the estate for $1,000; that he borrowed no money from plaintiff but that plaintiff agreed to pay him $1,000 to cancel the lease on the restaurant property, of which only $700 was actually paid.

The complaint alleged that defendant procured a loan of $1,000 from the plaintiff; that through fraud or misrepresentation plaintiff was induced to transfer to defendant his interest in a restaurant business, including the fixtures; that Callas owed plaintiff $1,059.40 on a note secured by chattel mortgage on his interest in the restaurant fixtures; that defendant, in consideration of his desire to enter into a partnership with plaintiff in operating the restaurant, orally agreed to pay said note and mortgage. It is then alleged that by reason of these facts and the failure of said defendant to pay said sums, plaintiff was damaged in the sum of $5,000. After the first appeal above mentioned, the trial court (Judge Leonard) found in all respects in favor of the plaintiff and awarded him a judgment in the sum of $2,059.40, being $1,000 for the loan by the plaintiff to the defendant in connection with the sale, and $1,059.40 for the note and mortgage originally given by Callas to the. plaintiff, with interest on both amounts.