Wood v. Metzenbaum

THOMPSON, J.

This is a purported appeal from a judgment of dismissal of the cross-complaint of defendants Walter Metzenbaum and Rose Metzenbaum, rendered pursuant to an order sustaining plaintiffs’ demurrer thereto, with leave to amend. Said defendants refused to amend within the time allowed, or at all. The suit based on the complaint and answer is still pending.

Two questions are involved: First, Is the judgment appeal-able? Second, Does the cross-complaint adequately state a cause of action under section 442 of the Code of Civil Procedure ?

The amended complaint alleges that the defendant Walter Metzenbaum, who is an attorney at law and appears for appellants, was a duly licensed real estate broker and that the other named defendants are his wife, daughter, son and the son’s wife; that Oulton Land Company owned the “Oulton Ranch” on Twitchell Island in Sacramento County, described in Exhibit “A” attached to the complaint, which was subject to an oil and gas lease held by the Standard Oil Company of

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California, by the terms of which lease the owner of the land was entitled to one-eighth royalty in all oil or gas extracted therefrom. It is alleged that on August 15, 1943, plaintiffs employed said defendants Walter Metzenbaum and M. Metzenbaum as their agents and brokers to purchase the land for plaintiffs in consideration of one-third of said one-eighth of all royalties paid to plaintiffs under said oil and gas lease as defendants’ commissions for negotiating said purchase; that at all times the Oulton Land Company was willing to sell said land for the sum of $110,000, which fact was known to the defendants but unknown to plaintiffs, and that the defendants falsely represented to plaintiffs that the sum of $125,000 was the least the owner would accept for said land; that relying on said false representations plaintiffs executed with the defendants as their brokers on August 19, 1943, a written agreement to pay the owner of said land said sum of $125,000, in consideration of which services plaintiffs agreed to pay the defendants one-third of said one-eighth royalties as broker’s commissions for negotiating the purchase, and plaintiffs thereupon agreed to and did purchase said land, and deposited with Title Insurance and Guaranty Company, the sum of $10,000 as part payment of the purchase price thereof; that thereafter, and on August 21, 1943, the defendants fraudulently entered into a written contract with the Oulton Land Company to purchase the land in their own names and they did purchase it for the sum of $110,000, payable in the sum of $40,000 cash, plaintiffs’ $10,000 deposit being included therein, and the balance of $70,000 to be paid the owner by defendants’ notes in said sum, secured by their trust deed to the property; that plaintiffs had no knowledge of said purchase of land by the defendants for said sum of $110,000, until June 1, 1945; that defendants, at the time of acquiring their title to the land, conveyed it to plaintiffs, pursuant to their agreement of August 15th, for the pretended purchase price of $125,000, retaining their one-third of one-eighth of all royalties derived from the oil and gas lease, and also wrongfully and fraudulently retaining said sum of $15,000, being the difference between their purchase price of $110,000 and said sum of $125,000, which they represented to plaintiffs to be the amount paid to Oulton Land Company. The complaint further alléges that subsequent to defendants’ purchase of the land in September, 1943, they were paid and wrongfully retained the sum of $8,108.06 in royalties from the oil and gas lease without the knowledge or consent of plaintiffs, and that defendants