Webber v. Smith

JAMES, J.

Appeal from a judgment entered against defendant. The action was brought to recover, first, an amount of money alleged to be owing to plaintiff from defendant as the purchase price of the goodwill represented by a milk

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route. There was a second cause of action which it is not material to take notice of, as there is no controversy over the correctness of the adjustment of the matters concerned therein. Plaintiff testified that he sold to the defendant the equipment and business connected with his milk route in the city of Pasadena for the sum of four thousand dollars. A bill of sale was proved to have been made which covered all of the tangible property, made up of automobile delivery wagons and a truck, milk bottles, etc., the price fixed as the consideration therefor being the total amount of $2,625. Plaintiff testified that the difference between the amount represented in the bill of sale and the four thousand dollars was to be covered by a promissory note of defendant for the sum of one thousand dollars and the balance to be paid in cash. He testified that at the time the bill of sale was made there was some talk about drawing a contract covering the sale of the milk route, and that defendant said that he did not think he could word such a contract right that evening, “but if I could do so we would fix it up at that time; I told him that I didn’t think that I could word it right and that we would carry it over until another time. ’ ’ This promissory note was not given. It was agreed as a part of the same transaction that the plaintiff should be employed by the defendant as foreman at a salary of one hundred and twenty-five dollars per month, and pursuant to this employment he continued to deliver milk over the same route that he had theretofore managed. The defendant, when settlement was demanded of him at a later date, denied that he had ever purchased the milk route from plaintiff. The plaintiff, prior to the making of the bill of sale, had been indebted to the defendant for a large amount of milk furnished by the latter from month to month and which charges he was unable to meet. It was. because of his inability to pay his debts that the defendant took over the delivery equipment. The amount mentioned in the bill of sale was about the amount of indebtedness that', was canceled by the transferring of the property therein described. The jury sitting at the trial returned a verdict in favor of plaintiff for the sum of one thousand dollars, which was based upon the claim of the plaintiff as to the agreement of defendant to pay him for his milk route.