Garau v. Marchetti

CONREY, P. J.

On the twenty-eighth day of November, 1914, the National Grand Opera Company, a corporation, was preparing to commence the production and presentation of operatic performances in various places on the Pacific

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coast. On that day a contract was entered into between the corporation, as party of the first part, and A. Garau, as party of the second part, and Carlo Marehetti, as party of the third part, which provided for certain moneys to be advanced by Garau and Marehetti to cover the preliminary expenses of the presentation of such performances. Provision was made in the contract for the manner of repayment of such moneys to be advanced. On the fifth day of March, 1915, a supplemental contract was entered into between the same parties, referring to the fact that the party of the second part subsequent to November 28, 1914, had advanced to the party of the first part a certain sum of two thousand dollars, and further provided as follows: “Now therefore, in consideration of the assuming by said party of the third part of the repayment to the said party of the second part of one-half (%) of said sum of two thousand ($2000) dollars with legal interest in the event that the money from the sale of seats, or other sources, after the payment of all necessary debts and obligations, shall be insufficient to pay to the said party of the second part the said sum of two thousand ($2000) dollars as aforesaid, the said respective parties do mutually agree that the said contract so entered into as aforesaid shall be modified in the following respect, to wit.” The contract then set forth a modified arrangement for the division between Garau and Marehetti of the moneys to be received by them in repayment of their advances to the corporation.

In this action the plaintiff seeks to recover from thé defendant the sum of one thousand dollars, which the defendant agreed to pay to the plaintiff under the provisions of said supplementary agreement, together with interest thereon. It is admitted that no part of said sum of two thousand dollars has been repaid to the plaintiff either by the National Grand Opera Company or by the defendant.

Responding to an affirmative defense contained in the answer and in accordance with the facts as shown by the evidence, the court found that as a part of the business of the opera company for the season covered by said agreements, the company planned to produce and present grand opera in the city of San Francisco, in the Gort Theater, and had a lease for the production and presentation of grand opera in that theater; that the lessor, one John Cort,