Seches v. Bard

THE COURT.

The petition for a transfer of this cause to this court was granted in order to give further consideration to the point raised by appellants that in part this action had been prematurely brought. Based on this

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contention the appellate court partially reversed the judgment of the trial court. Upon mature deliberation we are of the opinion that, as applied to the facts of this ease, the point is without merit.

It appears that the defendants, Mr. and Mrs. Louis Bard, and plaintiff’s assignors, Mr. and Mrs. Arthur Bard, were engaged. jointly in various theatrical enterprises resulting in a considerable amount of litigation. In December, 1928, the Bards entered into an agreement of settlement with their opponents, by the terms of which the Bards became entitled to the sum of $78,000, $30,000 of which was paid to them in cash, the balance being evidenced by twelve promissory notes of the sum of $4,000 each, payable progressively one each month. The makers of these notes were solvent, and the notes were guaranteed by the West Coast Theaters, Inc., a solvent concern. The present action arose because of divergent claims made by the two Bard families to the proceeds of this settlement. The $30,000 in cash and the notes were delivered to defendant Louis Bard. He gave his brother Arthur the sum of $12,500, but a dispute arose as to the proper division of the balance. Arthur Bard claimed he was entitled to one-half of the proceeds of the settlement, while Louis Bard contended that he was entitled to the entire balance. Being unable to agree, Arthur Bard and his wife assigned their claim to plaintiff for purposes of suit, and this action was commenced. The amended complaint is in the form of a common count for money had and received in the sum of $26,500, that sum being one-half of the $78,000 less the $12,500 already received. The complaint likewise alleges that plaintiff has demanded the money from defendant but that defendants “have refused and failed and still refuse and fail to pay the game or any part thereof” to plaintiff.

The answer denied the allegations of the complaint except that it was admitted that $12,500 had been paid. The defendants also counterclaimed for $3,125, it being shown at the time of trial that that sum was one-half the amount that Louis Bard had expended for attorney’s fees in litigation in which he and Arthur Bard were interested. Before the time of trial defendants demanded and secured a bill of particulars as to the items upon which plaintiff relied. After a trial on the merits the trial court entered