Thompson v. California Brewing Co.

California Court of Appeal Apr 25, 1961 No. Civ. 19162Published

Before: Duniway

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Holding. The court held that the plaintiff's claim for breach of an implied-in-fact contract was barred by the two-year statute of limitations because the defendants' initial use of the idea for testing purposes constituted a breach, and there was no evidence of an agreement to postpone payment or permit free testing.

Issues

Whether the statute of limitations for an implied-in-fact contract to pay for an idea begins to run upon the initial use of the idea for testing purposes in the absence of an agreement to the contrary.
Whether a contract term allowing for a free test period can be implied from the subjective, uncommunicated intentions of the plaintiff.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of such an understanding, there was just as much a breach of contract duty when defendants started using plaintiff’s idea for test purposes as there was of a delictual or tort duty under the third cause of action.”

“A contract term cannot be implied from an idea never communicated, and existing solely in the mind of one of the parties.”

“There being no evidence from which it can be inferred or implied that, the claimed free test period was a part of the contract, the breach occurred when the first use of the idea occurred.”

DUNIWAY, J.

This is the second appeal in this case. In the first

(Thompson

California Brewing Co.,

150 Cal.App.2d 469 [310 P.2d 436]) this court reversed a judgment sustaining demurrers without leave to amend, as to the first two causes of action. It held (p. 477) that those causes of action, one upon an express contract and one upon an implied in fact contract, were on their face barred by the two-year limitation period prescribed by section 339, subdivision 1, of the Code of Civil Procedure. This was because the complaint, when supplemented pursuant to Code of Civil Procedure, section 426, subdivision 3, showed on its face that the defendants’ use of plaintiff’s idea began more than two years before the action was filed. It also held (p. 478), that plaintiff should be given an opportunity to amend by pleading “facts which, if they exist, negative the seeming bar of the statute as to the first and second counts.”

Upon remand, plaintiff amended both counts, but at the trial he elected to withdraw the first count and to proceed on the second count, on the theory of an implied in fact contract to pay for his idea. At the conclusion of plaintiff’s ease, the court granted a nonsuit, and plaintiff again appeals. We conclude that the judgment must be affirmed.

Briefly, the cause of action pleaded in the second count, as it was before this court on the prior appeal, is that plaintiff, at defendants’ request, submitted to them a “new and novel idea” for the advertising and promotion of the sale of beer. The idea, stated in a letter, is; “Brew at least 2 kinds of beer under two different labels, a man’s beer and the present beer under your new label for feminine and home consumption trade.” The submission was stated to be with the expectation, as defendants understood, that plaintiff would be paid if they used it. It was also alleged that they did use it hi an advertising campaign. The reasonable value was stated to be $50,000.

The amended second count adds an additional zero to the claimed value of the idea. It also alleges that it was “clearly understood” between the parties that defendants might test the idea, and that if it was found to be suitable, then they might adopt and use it, in which event they “would pay to

[508]

Thompson v. California Brewing Co.

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DUNIWAY, J.

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