Le Ballister v. Redwood Theatres, Inc.

SPENCE, J.

Plaintiff brought this action to recover as a third party beneficiary under an agreement entered into by defendant Redwood Theatres, Inc., with the owners of the controlling interest in the corporation by which plaintiff was formerly employed. Defendant Mann had guaranteed the performance of said agreement by the defendant corporation. The cause was tried by the court sitting without a jury. The findings were in favor of plaintiff upon all issues, but the court made its conclusions of law as follows: “That said contract was not made for the express benefit of plaintiff within the meaning of Section 1559 of the Civil Code of the State of California, and that solely for such reason plaintiff take nothing hereunder and that defendants have judgment against plaintiff for their costs of suit herein

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incurred.” From the judgment entered in favor of defendants, plaintiff appeals.

The question presented on this appeal is whether plaintiff was entitled, under the provisions of section 1559 of the Civil Code, to recover upon the contract set forth in the complaint. Said section reads as follows: “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” The agreement provided for the purchase by the defendant corporation of certain stock of the National Theatres Syndicate,for the sum of $43,937.50 and contained the following provision: “It is further understood and agreed that in the event you accept this offer and control of the said corporation is taken over by us, we will retain . . . your Mr. Homer Le Ballister, now employed by you as manager, in some suitable position for a period of one year at a salary of not less than eighty-five dollars ($85.00) per week.”

Appellant contends that said contract was one made expressly for his benefit within the meaning of said section 1559 of the Civil Code and that the trial court erred in denying the recovery upon the ground stated. In our opinion this contention must be sustained. While the contract was not made solely and exclusively for appellant’s benefit, it was not necessary that it should have been so made in order to entitle him to recover.

(Stanton

v.