Western Homes v. Herbert Ketell, Inc.

236 Cal.App.2d 142 (1965) WESTERN HOMES, INC. et al., Plaintiffs and Appellants,

v.

HERBERT KETELL, INC. et al., Defendants and Respondents.

Civ. No. 22513. California Court of Appeals. First Dist., Div. Three.

July 28, 1965. Berlin, O'Grady, Doll & Goodman, Sidney L. Berlin, and I. R. Goodman for Plaintiffs and Appellants.

Dolwig & Athearn, Richard J. Dolwig and Forden Athearn for Defendants and Respondents.

DEVINE, J.

Appellant, plaintiff, [fn. 1] seeks reversal of judgment of dismissal which followed sustaining of demurrer to the third amended complaint. Leave was given to amend, but plaintiff declined to amend. The complaint is put into the form of suit for declaratory relief, but essentially the cause is based upon an alleged third party beneficiary contract.

Respondents Ketell made a contract with parties defendant Saich (who did not demur and who are not parties to this appeal), who were the owners of unimproved real property in the City of Cupertino, whereby the Ketells were to develop the property. Appellant was not a party to the contract. The contract mentions appellant, however, in two paragraphs. Paragraph twenty provides for certain commissions to be paid to appellant, but expressly makes this the obligation of the Saichs, and it is not involved in this appeal. [1] Paragraph [144] thirty reads as follows: "Thirty: Management: Parties contemplate that Western Homes, Inc. and Lloyd Enright shall handle leasing, rental collection, and management of the entire project. It is understood that George Bronner, sole owner of such corporation, shall personally have the continued benefit and obligation of such employment. Also it is understood that Real Estate License No. XXXXXXXXX will receive fifty (50%) per cent of the gross revenue of Western Homes, Inc. payable as received by Western Homes, Inc." The complaint alleges that the contract between the Saichs and Ketell would not have been made without paragraph thirty as a material part.

Plaintiff alleges that an actual controversy exists between plaintiff and defendants in that plaintiff claims the right to manage and to continue to manage the project which is the subject of the written agreement, but defendants claim they have the right to terminate, dismiss and discharge plaintiff from his management functions and that plaintiff has no rights under said agreement; plaintiff prays judgment declaring whether under the terms of said contract, and in particular paragraph thirty thereof, plaintiff has the right to manage and to continue to manage the project.