George v. Simpson

CRAIL, P. J. This is an appeal from a judgment against the plaintiff and in favor of the defendant Frank Simpson, Sr., after an order sustaining a demurrer to plaintiff’s amended complaint without leave to amend and after an order denying permission to the plaintiff to file a second amended complaint. The appeal presents two questions: (1) Does the amended complaint state a cause of action against Frank Simpson, Sr A (2) Did the trial court abuse its discretion in refusing to permit plaintiff to further amende

It is alleged in the amended complaint:

(a) That at all times therein mentioned the defendant Frank Simpson, Sr., was the owner of a certain hotel building in Los Angeles known as the Hotel Savoy; that on June 23, 1924, the defendant Frank Simpson, Jr., purchased all the furniture located in said hotel building and entered into a lease with Frank Simpson, Sr., under the terms of which he took possession of the building for the purpose of operating a hotel business, and thereafter until September 19, 1934, continued to operate and conduct said business; that on the 23d of June, 1924, the plaintiff and Frank Simpson, Jr., entered into a contract in writing by which the plaintiff agreed to act as manager of said hotel and by which the said Simpson, Jr., agreed to pay to plaintiff for his services as such the sum [573]of $350 per month as salary, and also by said instrument assigned to plaintiff an undivided one-tenth interest in the proceeds from the operation of said business and an undivided one-tenth interest in the furniture and in the lease, and that the plaintiff acted as manager of said hotel business until July 31,1934, when such employment was terminated by SimpSon, Jr.; that during all of said time the defendant Simpson, Jr., was in possession of said Hotel Savoy and that during all of said time the said Simpson, Jr., conducted a hotel business on said premises and in connection therewith constantly advised and collaborated with the defendant Simpson, Sr., and that defendant Simpson, Sr., during all of said time was and now is familiar with all matters and things connected with said business and the carrying on and conducting of the same; that during all of said time the defendant Simpson, Jr., with the consent and permission of plaintiff has retained in his possession and under his management and control all of the said furniture, including the interest of the plaintiff therein.

(b) That during all of said time there has existed between the plaintiff and defendants a relationship of trust and confidence ; all receipts and expenditures in connection with the operation of said hotel have been in the exclusive custody and control of defendants and during all of said time plaintiff had no accounting for the same nor knowledge of the amount or disposition of same, and the plaintiff has not had access to the books of account thereof nor information as to the contents thereof; that even the possession of the lease has always been with the defendants, and plaintiff has never seen the same and is not familiar with the contents thereof; that plaintiff does not know and has never known the amount of the proceeds from the operation of said hotel, nor the nature and extent of the debts incurred in connection with the operation of the business, if any, but, on the contrary, plaintiff has intrusted his interests in the leasehold estate and his interest in the proceeds to the sole care, custody and management of the defendants and has in connection therewith wholly relied upon the honesty and integrity of the defendants and said defendants have managed and controlled the same without any control by the plaintiff and with plaintiff’s full confidence and trust.