Dupuy v. Macleod

SEARLS, C. This action was brought to recover the sum of $500, the balance due on a sale of stock of merchandise and store fixtures sold and delivered by the plaintiff to defendant, at Los Angeles, May 31, 1890. The real question in issue is this: Plaintiff avers the sale was made for $1,500, to .be paid as follows: $1,000 in cash, the remaining $500 to be paid as follows: When $100 worth of stock was sold, $20 [148]to be deducted by defendant as commissions, and $80 paid to plaintiff, and so on until the $500 was paid. If the stock sold did not amount to sufficient to pay plaintiff $500, after deducting twenty per cent, plaintiff was to receive the eighty per cent of proceeds in full payment. He avers the sale of Sufficient stock to entitle him to full payment under this agreement, and the evidence sustains him in this last assertion. Defendant avers that the agreement was that the $1,000 paid in cash was first to be deducted from the proceeds of sales, before any further payments were made, and then payments were to be made as averred by plaintiff; and he avers that $1,000 had not been realized from the sales when the action was brought, and hence that nothing was due. Conceding his theory to be correct, the evidence sustains his position that $1,000 had not been realized from sales. It is admitted on all hands that the sum of $1,000 was paid by defendant to plaintiff at the date of the sale, and that the defendant went into possession of the property at once, and has ever since retained the same. Plaintiff had judgment, from Which, and from an order denying a new trial, this appeal is prosecuted.

The first error assigned by appellant is that the court did not find upon all the issues made by the pleadings, and (1) that it did not find upon the facts set forth by defendant in his second and separate answer. The facts set up in the separate defense were that the agreement was that defendant was first to appropriate from the proceeds of sales the $1,000 cash, as before stated, before any proceeds were to go to plaintiff. The finding was quite full on the point, and fully sustained the allegations of the complaint. It was not necessary for the court, after finding that the agreement was that defendant was to keep an accurate account of all sales, and, When the sales amounted to $100, $80 thereof was to be paid to plaintiff, and $20 retained by defendant, etc., to go on, and find, as a negative proposition, that they did not agree as set out by defendant. It was conceded that an agreement was made. Just what that agreement was, was' the point submitted to the court, and the finding specifies it distinctly, and passes upon the question.