Hagge v. Drew

SHINN, J.

Plaintiff, as assignee of J. A. Charlesworth, recovered judgment against defendant John Drew, as follows: $3,000 upon an account stated; $4,300 upon a promissory note, together with $498.08 as attorney’s fees; also $16,875 on a promissory note, together with $1,897.61 attorney’s fees; also $1,347 on account of moneys advanced and paid out for the use and benefit of defendant, at his special instance and request. Interest also was awarded on the various sums, and the judgment was for $30,699.62. Defendant appeals.

J. A. Charlesworth was a real estate broker. His services were engaged by defendant in connection with two of defendant’s enterprises. One of these was the sale of acreage in the San Fernando Valley in Los Angeles County to H. H. Hagge, plaintiff herein. Plaintiff, however, in the present action is interested, so far as shown, only as the holder of the obligations for collection. The second transaction was one in which defendant leased from the Lankershim Estate some beach frontage on the Roosevelt Highway, where he operated what is known as the Variety Beach Club.

The indebtedness evidenced by the account sued on in the first cause of action arose out of advances made by Charles-worth in connection with the beach club venture, and consisted of sums advanced for defendant’s liquor license, payment of rent and other bills. Plaintiff introduced in evidence a statement of account showing moneys advanced by

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Charlesworth in the total amount of $3,000 for which suit was brought. This statement was subscribed by the defendant under the name of J. Drew. Charlesworth testified that nothing had been paid on the account, and defendant offered no evidence to prove that the sum was not owing, with interest.

The promissory note for $5,000 which was the subject of the second cause of action was executed by defendant in consideration of the services of Charlesworth in negotiating a lease of the beach club property from the Lankershim Estate. It was dated January 23, 1942, was payable at the rate of $100 per month, commencing May 1, 1942, and bore five per cent interest. It provided that the unpaid principal and interest should become immediately due and payable, at the option of the holder of the note, in case of default in the payment of any installment when due, and it also provided for attorney’s fees in case of suit. Seven hundred dollars were paid on account of this note and the testimony of Charlesworth was that no further sum had been paid. No evidence was offered by the defendant except as to this second cause of action. The answer pleaded, and the proof established, that Charlesworth received a commission from the Lankershim Estate Company for negotiating the lease with defendant. The answer further alleged that Charlesworth represented to defendant at the time the lease was made that he was not receiving a commission from Lankershim Estate Company. Defendant testified that Charlesworth had made that representation, that he believed and relied upon it, and otherwise would not have paid a commission to Charlesworth, and he testified further that he did not learn that the Lankershim Estate had paid Charlesworth a commission until December, 1943, at which time he refused to make any further payments on the note. Charlesworth testified that he told defendant he was receiving a commission from the Lankershim Company but he did not testify, and there was no evidence, as to when he imparted that information, or that it was prior to, or at the time of, the execution of the note. The court made no finding upon this defense. The absence of a finding is fatal to the judgment for plaintiff on the second cause of action. In view of the evidence, a finding upon this issue would not necessarily have been made in favor of plaintiff. Charlesworth could not lawfully collect a commission from both parties to the lease transaction without disclosing the dual nature of his repre