Smith v. Bach (1921) · DecisionDepot

Smith v. Bach

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Sep 14, 1921 No. Civ. No. 3645.Published

Before: Shaw

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Holding. The court held that a contract for the sale of land based on an unrecorded map is void, allowing the purchaser to recover money paid under the contract, and that defendants are not jointly liable for money received individually.

Issues

Whether a prior judgment sustaining a demurrer in a different action bars the current suit.
Whether defendants are jointly liable for money received under a void contract.
Whether a purchaser is estopped from recovering money paid under a contract that violates a statute regarding unrecorded maps.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the liability of defendants was not founded on contract upon which they were jointly liable, but upon an implied obligation of each for money had and received without consideration.”

“Where money has been paid in consideration of an executory contract which is illegal, the party who has paid it may repudiate the agreement at any time before it is executed and reclaim the money.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

Action in

assumpsit.

Upon a trial of the case first had, a nonsuit was granted, followed by judgment against plaintiffs, which on appeal therefrom was reversed, to which decision (reported in 183 Cal. 259, [191 Pac. 14]) we refer for a full statement of the facts upon which the action is founded.

Upon a retrial, judgment was rendered in favor of defendant Bach, and for plaintiffs against Borgh, bnt for a less sum than the amount claimed by plaintiffs. Thereupon plaintiffs, insisting they were entitled to judgment against both defendants for the fnll sum of their claims, appealed. This judgment was affirmed. (See 53 Cal. App. 63, [199 Pac. 1106].)

[1]

Borgh has likewise appealed from the judgment so rendered against him. Based upon the record presented, there is no’ merit in his contention that, by reason of the action of the court in sustaining a demurrer to plaintiffs' second amended complaint in a former action, an adjudication of the subject of litigation was had which constituted a bar to the bringing of a new suit to recover the amount-claimed. Neither the second amended complaint in the former action nor the demurrer thereto is set forth in the record, without which we cannot say the subject of the litigation in the former action is the same as in this, nor that the complaints are identical. No attack is made upon

[238]

the sufficiency of the complaint in the present action. Moreover, assuming the action of the court had and taken in the former suit to have been free from error, it may have been based upon defects in the complaint not affecting the merits; hence such ruling could not bar a new suit founded upon a complaint the sufficiency of which is conceded.

[2]

As held in pláintiffs’ appeal (reported in (Cal. App.), 199 Pac. 1106), the liability of defendants was not founded on contract upon which they were jointly liable, but upon an implied obligation of each for money had and received without consideration. Hence, in the absence of a joint liability, Bach was not liable for the money received by Borgh.

Smith v. Bach

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Synopsis

SHAW, J.

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