Mitchell v. Samuels

STURTEVANT, J.,

pro

tem.

This is an action for money had and received. The complaint consists of several alternative counts. In the first the facts constituting the cause of action are set out. The second and other counts are stated in the form of a suit for money had and received, and judgment is prayed for in the sum of $3,350, being the sum of two thousand five hundred dollars advanced at one time, and $850 at another, and for further minor sums laid out and expended. The amounts sued for were received by defendant under a contract the execution of which is admitted by the pleadings. The -undisputed facts show that defendant was in the possession of the Hotel Minster, situated at the northeast corner of Mason and 0 ’Farrell Streets in San Francisco, under a lease for the term of five years from November 1, 1913, and was the owner of the hotel business conducted therein, together with the furniture thereof. Plaintiffs agreed to manage the hotel for the defendant for a salary and a share of the profits, with an option to purchase a one-half interest therein for the sum of seven thousand dollars. The parties entered into a written contract covering their agreement which is somewhat lengthy, the substance of which, however, is as follows: After reciting the lease that the defendant had in the premises it provided that plaintiffs should advance to defendant all the money received by them from the sale of a certain piece of property owned by the plaintiff, Lena Mitchell, said money to be applied by defendant in the payment, from the date of its receipt, of the rent and operating expenses of said hotel to the extent of the sum received. No interest was to be paid by defendant on the amount so advanced, but provision was made for the repayment of the principal as hereinafter recited. The agreement also provided that the plaintiffs were to have the control and management of the hotel, but were not to make

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any purchases of furniture or furnishings, or incur any obligations thereunder in excess of the existing charges without the consent of defendant. Plaintiffs agreed to use their best efforts and devote such of their time and attention as might be necessary for the proper discharge of their duties, and to conduct the said hotel in a first-class manner, and to accept as and for their joint compensation for the services so to be rendered by them the sum of $150 per month for a period of twelve months, unless they sooner exercised the privilege of the option of purchase. With reference to the repayment of the money advanced by plaintiffs, the agreement provided that it should be made out of the net profits, if any, derived from the conduct and operation of the hotel each month until the full amount should have been paid. In the event that the gross income from the hotel for any month was insufficient to pay the operating expenses, including the salary of plaintiffs, provision was made by which the defendant was to make up the deficiency on his personal account.