Wurdeman v. Waller

PRESTON, J., pro tem.

This is an appeal by the defendants Reba A. Wailer and W. J. Starr from a judgment entered against them in the sum of $1,528.89.

The facts are briefly these: Converse Wurdeman, the son of plaintiff, was engaged in the electrical business in Venice, California, under the fictitious name of “Coast Electric & Machinery Company.” On May 18, 1922, Converse Wurdeman executed and delivered to “The Electric Corporation,” a corporation of Los Angeles County, a promissory note in the sum of $2,000, payable in installments of $200 per month. The plaintiff Mrs. R. F. S. Wurdeman signed this note as joint maker, without receiving any consideration therefor, for the purpose of enabling her son to obtain credit from The Electric Corporation. Converse Wurdeman was heavily in debt at the time this note was signed, and his financial condition continuing to get worse instead of better until on or about June 13, 1922, it became apparent to him that he could conduct his business no longer. The defendants were in his employ and had considerable wages due them. A conference was held between Converse Wurdeman and the defendants, wherein it was agreed that Converse Wurdeman should transfer the entire business to the defendants, and they would assume and pay certain indebted- ' ness of Converse Wurdeman. Pursuant to this arrangement, and on June 13, 1922, Converse Wurdeman made, executed and delivered to defendants a bill of sale for the entire business, including all of the stock of merchandise,

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consisting of electrical supplies and fixtures of every kind and description; also all the bills receivable, and all interest in any uncompleted contracts, together with the goodwill of the business, etc.; said bill of sale reciting a consideration of $10. The defendants went into possession of the business when the bill of sale was delivered on June 13, 1922, and have conducted the business ever since.

The disputed question of fact in the case was whether this particular note of $2,000 to The Electric Corporation was included in the indebtedness that the defendants were to assume and pay. Converse Wurdeman testified that, as part of the consideration for the transfer, the defendants agreed to assume and pay the note of $2,000 to The Electric Corporation, and that defendants actually did pay $200 on account of said note on July 7, 1922, and a further sum of $35 on October 19, 1922. Converse Wurdeman further testified that as part of the consideration for the transfer to defendants, he was to be employed by them at a salary of $35 per week, and that he did actually work for defendants from June 13, 1922, until October 5, 1922. The defendants, and one or two witnesses, on the other hand, testified positively that this note was not included within the accounts they agreed to assume and pay, and that they had made no payments thereon. Plaintiff testified that she was present at a conference in October, 1922, and heard defendants agree to assume and pay the $2,000 note in question. Mr. Riley, the secretary of The Electric Corporation, testified that he was also present at a conference in October, 1922, between Converse Wurdeman, Mrs. Wurdeman and defendants, and heard defendants agree to assume and pay said note.