Bowyer v. Burgess

DOGLING, J. pro tem.* Plaintiff appeals from a judgment in favor of defendants and respondents Waliga in an action to recover approximately $5,000. The only basis for recovery against these respondents was the following agreement in writing:

“Fullerton, Calif. April 21,1956.

“It has been proven and is acknowledged by the undersigned that James Burgess has been for all of his employment [99]period with Bastanehury Water Co. withholding for his own use certain funds which were the property of the company.

“Subject to further audit, the exact amount is unknown but [it] is acknowledged that the sum may be between $2,000.00 and $5,000.00. It is desired by Burgess and his relatives that no legal prosecution be instituted to which the Bastanehury Co. agrees, subject to complete restitution immediately upon determination of the correct amount. Method and manner of payment to be determined by the Bastanehury Co.

“Pending settlement of this account, Burgess agrees that he will not change residence and that he and his wife agree to guarantee payment of the money as determined by pledging their available . . . assets. They further agree not to dispose of or involve in any way any of their assets.

“/s/ James Burgess “/s/ Rose Burgess

“Because of our desire to avoid prosecution of said Burgess, we guarantee availability of Burgess and also payment of this obligation.

“/s/ Andrew Waliga “/s/ Theresa Waliga

“Acknowledged for Bastanehury Water Company.

“/s/ Carrell Bowyer.”

The evidence showed that James Burgess had been employed as a route salesman by plaintiff doing business under the fictitious name of Bastanchury Water Company, that said Burgess had kept for himself and not paid over to plaintiff a portion of the money which he had collected for plaintiff, and that when this shortage was discovered negotiations were engaged in which resulted in the execution of the quoted contract upon which this action is based.

Respondents defended on the ground that the agreement was illegal and void, being a contract not to prosecute the said Burgess for a crime. The parol evidence was conflicting, plaintiff and another witness testifying that in the negotiations there was no discussion of a criminal prosecution and that plaintiff’s only interest was in recovering the money shortage and the possible institution of a civil action for that purpose. Defendant Andrew Waliga, however, testified that plaintiff stated that he would institute criminal proceedings against Burgess unless the agreement was signed and that with such understanding the agreement was executed. The trial judge chose to believe Waliga and found that the word