Dunham v. McDonald

JAMES, J.

Appeal from an affirmative judgment entered in favor of defendant. Plaintiff brought this action to recover moneys which he alleged remained in the hands of defendant and to which plaintiff was entitled. On the eighteenth day of August, 1910, pursuant to negotiations theretofore had, defendant addressed a letter to the plaintiff at Santa Paula, California, in the following terms:

“I hereby confirm my verbal agreement with you as follows: In case I accept the lease on certain ground owned by G. W. Faulkner and contracted for in that certain lease and. agreement dated August 13th, 1910, I have agreed with you: First: Out of any profits coming to me, either in land, cash, royalty, or otherwise, after I have settled with Consulting Geologist H. R. Johnson, whose portion of all such is to be %th interest. Second: And after I have deducted the actual expenses incurred by reason of the geological examination of the leased lands and the exploitation of said leased lands by

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development, sale or otherwise, then from the interest then remaining to me in such lands, cash, or royalty, or otherwise, I am to give you the equivalent of % of all such remaining interest so accruing to me, either in land, cash, royalty or otherwise, that may be received therefrom by me, which is to be in full payment to you for all your services rendered in aiding me to procure said lease. ’ ’

Written acceptance of this proposition was made by the plaintiff. Thereafter defendant disposed of his rights in the land and lease. Plaintiff in his complaint alleged that defendant received the sum of thirteen thousand five hundred dollars as consideration for his rights in the land, but that defendant by communications and statements led the plaintiff to believe that defendant received only the sum of ten thousand dollars; that settlement was made upon the basis of the •ten thousand dollar consideration, and that after October 22, 1912, plaintiff for the first time learned that defendant had received more than ten thousand dollars for his interest in the land and lease. The prayer of the complaint was for judgment for the sum of $765.62. Defendant in'his answer took no issue upon the allegation in plaintiff’s complaint that he had led plaintiff to believe in the manner alleged that the total consideration for the sale of his interest in the land was the sum of ten thousand dollars. He proceeded, however, after admitting that the sum of thirteen thousand five hundred dollars was received, to allege that that sum was the gross amount, and that the defendant had expended such a sum of money on account of the disbursements mentioned in the written contract as to result in his having overpaid the plaintiff. Defendant filed a cross-complaint in which he sought to recover the sum of $749.29 on account of such alleged overpayment. It is upon the prayer of this cross-complaint that recovery was allowed to the defendant by the court. A second amended cross-complaint was filed during the course of the trial. Oral demurrer was made thereto that the alleged cross-complaint did not state facts sufficient to constitute a cause of action. No objection was made to the form of the demurrer, which was promptly overruled by the trial judge, and it was stipulated that the allegations of the cross-complaint might be deemed to be denied. The trial then proceeded. It is the contention of appellant, first, that the cross-complaint did not state facts sufficient to constitute a