Knox v. Trigonia Oil Co.

[270]

STURTEVANT, J.

The plaintiff commenced an action to recover moneys alleged to be due on a stated account. The defendant answered, a trial was had before the court sitting without a jury, judgment went for the plaintiff and the defendant has appealed. The appellant contends that the debt was contingent and that on a contingent debt one may not predicate a stated account. The vice in this position is in the assumption that the debt was contingent. It was not.

'<

Prior to the month of July, 1920, some oil lands on the' border between Santa Clara and Santa Cruz Counties were owned by one Spiegleman. At that time Percy McCabe claimed to have a lease on the lands. Prank Rose, manager of Trigonia Oil and Gas Company, a corporation formed under the laws of Oregon, came to California and opened negotiations for the purchase of said oil lands. For a consideration of $5,000 McCabe agreed to stand aside and allow Rose to conduct his negotiations directly with Spiegleman. As a result of the negotiations Rose was given such a contract that the Trigonia Oil Company of California was formed and Spiegleman transferred the property to the corporation under an executory contract which called for certain deferred payments. On July 8, 1921, the defendant executed an indenture in writing including the following passage:

“728 Phelan Building, San Francisco, Cal.,

July 8-21.

Trigonia Oil Company of California, Dr.

To Percy McCabe $3500, & James Lester $1500, Total $5000.

For commission assumed on sale of Spiegleman lease, Santa Clara Co. at $32,500—Commission $5000, payable in proportion as Spiegleman or Continental Oil & Refining Co. is paid. Trigonia Co. has paid to date to Spiegleman or Continental Oil & Refining Co. $8500.

Amount now due on account of commission........$1,307.90

Paid to McCabe on account $100

Paid to Lester on account 250 ................. 350.00

Balance ................................... 957.90