Mellus v. Potter

California Court of Appeal May 10, 1928 No. Docket No. 3511.Published

Before: Tuttle

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Holding. The court held that a general release does not bar a claim for commissions that had not yet accrued at the time the release was signed, and that the evidence supported the jury's finding that the respondent did not know or suspect the existence of such a claim.

Issues

Whether a general release bars a claim for commissions that had not yet accrued at the time of the release's execution.
Whether there was substantial evidence to support the jury's finding that the respondent did not know or suspect the existence of the claim at the time of signing.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release”

“The claim mentioned in the code refers to an existing right in favor of the creditor, and not to rights which have not yet accrued.”

TUTTLE, J.,

pro

tem.

This is an action brought to recover the sum of $6,000 upon a contract between appellant and respondent for one-half of certain commissions derived through the negotiation of a lease. The trial was had be

[702]

fore a jury, and a verdict was returned for the sum of $4,478.74 in favor of plaintiff. This appeal is taken from the judgment entered upon said verdict.

As to the facts involved, it appears that during the month of March, 1922, respondent endeavored, as a broker, to procure an oil lease from Gardena Syndicate to the Burhnam Company. He was approached by appellant, who convinced him that he (appellant) was in a position to procure the lease from the said Syndicate, and appellant also stated that he could get a good commission from the said Syndicate, and this commission would be divided equally between them. Respondent told him it was all right, and for him to go ahead. 'The parties also agreed to divide equally any commission received from the Burhnam Company. Both the proposed lessor and lessee knew of the arrangement in respect to the said commissions.

The lease was consummated, and the Burhnam Company paid appellant the sum of $3,509 as a commission. The Syndicate also paid appellant a commission, amounting to $8,957.49.

Appellant admits the contract for commissions was made, and admits the receipt by him of the said commissions. He relies upon the insufficiency of the evidence as his principal ground for reversal. At the trial a receipt in the following words, and admittedly signed by respondent, was admitted in evidence:

“June 14, 1922.

“Received of Potter & Smith Five hundred ($500.00) Dollars, payment in full for all deals up to date.

“J. J. Mellus.”

and it is contended by appellant that this release “is an insuperable bar to recovery on the part of plaintiff,” and that the jury could have drawn but one conclusion from the evidence, to wit, that respondent had released all claim to the commissions mentioned, in consideration of the receipt of the said sum of $500.

Mellus v. Potter

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TUTTLE, J.,

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