Fraga v. Evans

THOMPSON, J.

The plaintiff recovered judgment for $1,500, the unpaid portion of the purchase price of his partnership interest in the Greyhound Café business in Livingston, Merced County, which was sold and delivered to the defend

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ants pursuant to an oral agreement. From that judgment the defendants have appealed.

It is contended the findings and judgment are not supported by the evidence. The defendants assert that the $1,500 payment was conditioned hpon their reselling the property for $16,000, and that it has not been resold.

The evidence is conflicting regarding the terms upon which said payment of $1,500 was to become due and payable. It appears that defendants owned the building in which the café business was conducted. The plaintiff and James Evans are brothers-in-law. They became partners in the café business in October, 1945, and operated the business until January 1, 1947, at which time plaintiff sold his interest to the defendants pursuant to an oral agreement of sale for the sum of $3,500. The defendants then took and retained possession of the business and continued to operate the café. The partnership was dissolved on the last-mentioned date. During the existence of the partnership, the building was enlarged and new equipment was installed at the cost of the partnership. At the time of the sale the building and café business were listed with a real estate broker for sale at the price of $16,000. At that time the partnership owed debts in the aggregate amount of about $1,000. A few months after the sale, defendants withdrew the property for resale and “refused to sell” it. At the time of sale the defendants paid plaintiff $2,000 in cash and agreed to give them a promissory note for the unpaid portions of the purchase price, in the sum of $1,500, payable “when he [the defendant] sold that business.” The plaintiff’s wife testified that she was present when the café business was sold to the defendants, and that it was then “understood it would be . . . sold [by the defendants] within two months” from the time the defendants took possession of the business. The defendants failed and refused to execute the note. Plaintiff demanded the execution and delivery of that note several times, which was refused. Sometime in March, 1947, plaintiff’s wife called Mr. Evans on the phone and asked him to make and deliver the note for $1,500. Evans refused to do so. He repudiated that debt. He told Mrs. Fraga “You have got all you are going to get.” The defendants having repudiated the debt of $1,500, plaintiff commenced this action for the unpaid balance of the purchase price of the business, on July 28, 1947.