Foye v. Board of Trade

STURTEVANT, J. The plaintiffs commenced an action against the defendant on a common count for moneys had and received for the use of plaintiffs. After the cause had been, fully tried the trial court made findings in favor of the defendant and from the judgment entered thereon the plaintiffs have appealed. Prior to July 5, 1933, Joseph Rosenberg and Isidore Rosenberg, under the fictitious name of California Restaurants Co., had been conducting that certain restaurant known as Taits at 24 Ellis Street, San Francisco. The building is owned by the plaintiffs. The latter held a chattel mortgage on the furnishings. The Rosenbergs became seriously involved financially and owed large sums to numerous creditors for merchandise, numerous employees for services rendered, and the Mullen Manufacturing Company for the balance due on a conditional sales contract. An oral agreement was made by the terms of which the plaintiffs agreed to advance $4,047 for the payment of the debts of the Rosenbergs and the latter agreed to surrender immediate possession of the premises to the plaintiffs or their assigns. The record does not disclose any written instrument which purports to state the agreement above referred to, however, the plaintiffs place much reliance on a document executed by the defendant board which is in words and figures as follows, to wit:

“Received of Charles E. Foye and Vera M. Brady the sum of Four Thousand Forty-Seven Dollars ($4047.00). Of said amount Seven Hundred Ninety-Six and 06/100 Dollars ($796.-06) was paid on June 28,1933, and receipt was issued therefor. The balance of said sum, towit, Three Thousand Two Hundred Fifty and 94/100 Dollars ($3250.94) is being paid contemporaneously with the execution of this agreement.

“Said money has been or shall be used, first, to pay duly established labor claims of employees of California Restaurants Co., Taits, Joey Rosenberg, Joseph Rosenberg and/or Isidore Rosenberg in connection with the enterprise heretofore conducted at 24-2'6-28 Ellis street, San Francisco. [736]The balance of said sum shall be used to pay creditors of said enterprise pro rata. Any and all of said payments shall be made upon the following conditions:

“First: that labor claims shall be paid in full upon execution of the receipts hereinafter provided for.

“Second: that fifty per cent (50%) of the amount due Mullen Manufacturing Company on a conditional sales contract approximating Five Hundred and Fifty Dollars ($550.00) shall be forthwith paid to said corporation upon the execution of the document hereinafter provided for.