Maloney v. Houston

[586]

SHAW, J.

Plaintiff appeals from a judgment entered in favor of defendants. On September 6, 1918, defendants, who were in possession of two certain concessions at Seal-Beach, California, known ,as “Auto Parking Station” and “Tent City and Delicatessen Store,” of which they claimed to be the owners, entered into a written contract with plaintiff whereby, for the sum of $2,000, to be by him paid, they agreed to sell an undivided one-half interest in the property. Of the consideration so specified, $700 was paid by plaintiff at the time of the execution of the contract; and it was provided therein that the balance of $1,300 was to be paid on or before September 26, 1918, at which time a written contract of copartnership was to be executed for the conduct of the business. The contract contained a clause as follows: “It is further agreed by the parties hereto that no party to this agreement has any personal obligations or otherwise, nor will they contract any obligations that would he a lien on said concessions without the written consent of all parties hereto without forfeiting their rights in this agreement and in said concessions. Current running expenses and necessities of life excepted.”

Plaintiff made default in the payment of the $1,300 called for by the contract, and on November 22, 1918, filed an amended complaint containing three counts, one of which was to recover for twenty-six days’ services alleged to have been performed by plaintiff at the special instance and request of defendants, another to recover in

assumpsit

for $700, money had and received by defendants for and on account of plaintiff, and the other for a rescission of the contract.

In addition to their answer, defendants filed a cross-complaint, alleging the execution of the agreement and plaintiff’s default in the making of the payment, as agreed therein, by reason whereof they were damaged in the sum of $750.

At the trial the court made findings adverse to plaintiff, and as to the matters alleged in the cross-complaint, found in favor of defendants, as a result of which it was adjudged that plaintiff take nothing by reason of the action and that the defendants have judgment against him for the sum of $500.