Kent v. Danziger

SHAW, J.

In substance, the facts out of which this controversy arose are as follows: In the year 1910, plaintiff,

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defendant Danziger, and E. A. Wiltsee associated themselves under the fictitious name of Lost Hills Syndicate in a joint venture for the purpose of locating and developing certain prospective oil lands in what is known as the Lost Hills district in Kern County, California. It was agreed between the parties that Danziger and Wiltsee were to advance and pay all moneys required in the operations to be conducted. Kent was to contribute no money, but in consideration of devoting his time and service to the business, he was to receive a share of any profits derived from the venture. The association employed W. IT. Callahan as superintendent, who brought an action against the Lost Hills Syndicate, J. M. Danziger, E. A. Wiltsee, and J. M. Kent, as copartners doing business under such fictitious name, to recover for services rendered, and obtain a judgment against all of them. This judgment on appeal was affirmed, and thereafter Danziger, in consideration of the full amount thereof by him paid to Callahan, caused it to be assigned to George W. Price. An execution was issued thereon and, as a means of enforcing contribution, a levy was made upon plaintiff’s property. Thereupon plaintiff brought this action to have the execution recalled and all proceedings had and taken thereunder vacated and set aside and the sheriff enjoined from taking any action under or pursuant to the execution against his property.

Judgment was rendered for plaintiff, from which defendant Danziger has appealed.

In the trial of the Callahan case it was made to appear that Callahan commenced work in October, 1910, and continued work until December, 1911, at an agreed compensation of five dollars per day. It further appears from the judgment-roll in that case, which was received in evidence in the instant case, that Kent testified to the effect that about July 6, 1911, he received a letter from Danziger wherein Danziger stated to him that he was not going to put up any more money in the venture; that he was away ahead of Wiltsee in putting up money; and that Wiltsee had stated to him that he would take care of all matters from that time on. That pursuant to this notice Kent testified that he notified Callahan that Danziger was not going to put up any more money and would not be responsible for any more bills contracted- and that he (Kent) was out when