Green v. Shulman

WORKS, J.

It is alleged in the complaint in this action that plaintiff and defendant entered into a certain agreement, evidenced by a written bill of sale, by which defendant sold to plaintiff a certain stock of goods and store fixtures and assigned to him a lease of the storeroom in which the articles were contained; that defendant failed and refused, without reason, to deliver the lease to plaintiff, “thereby preventing plaintiff from making a sale and transfer of said property and lease, and did cause plaintiff on or about February 1st, 1921, to lose a sale to a purchaser of said property and lease, thereby causing plaintiff damage to and in the sum of $1000.00”; that on a day named defendant fraudulently made to plaintiff the false and untrue statement that he, the defendant, “could not deliver the said original lease because his landlord would not consent to a transfer thereof”; that plaintiff relied upon the untrue statement “and he was deceived thereby into paying to defendant the sum of $35.00 rent for the premises . . . for the month of February, 1921”; that defendant was not entitled to the rent, nor was it due him, “and his collection thereof from plaintiff was fraudulent, to plaintiff’s further damage in the sum of $35.00”; and that plaintiff was thereafter compelled “to again pay said rent for said month of February to the landlord and owner of said building, under threat of losing the possession thereof and forfeiting said lease.” The prayer was for judgment for damages for $1,035. The answer consists wholly of denials. Plaintiff had judgment for $250 and defendant appeals.

The complaint fails to state a cause of action. Each

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item of damages is claimed upon the theory that appellant was bound to make delivery of the lease. Such was not his contract. The assignment made transfer to respondent of the entire title of appellant under the lease and the assignment became executed the moment it was delivered (3 Cal. Jur., tit. “Assignments,” see. 21). Therefore, not only did appellant not agree to make physical transfer of the lease, but respondent’s rights under the assignment were as complete without the possession of the instrument assigned as they would have been with it.

The complaint was demurred to on the ground that it attempts to allege two causes of action without separate statement. This point is good. We do not decide that the joinder would have been proper even if the two causes had been separately stated.