Konda v. Lamkin

California Court of Appeal Mar 18, 1937 No. Civ. 5776Published

Before: Plummer

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Holding. The court affirmed a judgment for specific performance and an accounting, holding that the trial court's factual findings regarding disputed expenses were binding and that an accounting was necessary to determine the final purchase price where charges were contested and contingent.

Issues

Whether the trial court's findings on disputed accounting items were supported by the evidence.
Whether the appellants' statement of expenditures constituted a stated account precluding further judicial inquiry.
Whether the plaintiff was required to make a specific tender of payment prior to filing an action for accounting and specific performance.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the trial court had before it the witnesses, and its findings as to such items are binding upon this court.”

“the items of account rendered by the appellants to the respondent lacked finality, and therefore could not become a stated account”

“in a case where it is necessary to have an accounting to ascertain the sum to be repaid, the rule regarding a tender is not so strict”

PLUMMER, J.

On the 14th day of September, 1933, the appellants executed and delivered to J. G. Richardson and his assignees an option to purchase at any time before January 1, 1935, a certain 24-acre orange orchard in Tulare County, for the sum of $15,395. At the same time an agreement was entered into providing that the appellants should care for said property, pay all taxes, gather the orange crops, market the same, and credit the expense of caring for the orchard with the receipts of the orange crops. The parties also agreed

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upon a tentative budget of the sum of $3,506 for each fiscal year for caring for the orchard, marketing the crops, etc. It was also agreed that the appellants should keep books of account and records of all expenses and income pertaining to the orchard. J. G. Richardson, the party who obtained the option, assigned the same to Margaret Yon Neindorif, who, on October 27, 1934, gave notice to appellants of an intention to exercise the option. On October 30th, however, and before any further proceedings were had, Margaret Yon Neindorif assigned the option and all her rights thereunder, to plaintiff and respondent.

It appears that the total cost of caring for the orchard claimed by the appellants was almost double the stipulated budget, and presented to the respondent a statement claiming that the sum of $23,380 was necessary to be paid to the appellants in order to secure a conveyance of the premises. This action was begun for an accounting and also for a decree of specific performance directing the appellants to make conveyance according to the terms of the option.

At the time of beginning this action the respondent deposited with the clerk of the court the sum of $23,380. At the conclusion of the hearing of the accounting the court found that the sum to be paid by the plaintiff for the premises, and which the appellants were entitled to receive for a conveyance of the orchard, was the sum of $17,860.62, and upon the payment of said sum by the plaintiff to the appellants, conveyance was ordered to be made.

In the accounting certain items were disallowed, as follows, to wit:

Excessive charges on fertilizer............$ 25.00

Konda v. Lamkin

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PLUMMER, J.

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