Austin v. Harry E. Jones, Inc.

STURTEVANT, J. The plaintiff filed a complaint against several persons asking for an accounting. She named certain fictitious individuals as defendants but she did not serve anyone claimed to be the fictitious defendant. She also named Harry E. Jones, Inc., a corporation, as one of the defendants. Before the trial the action was dismissed as to that corporation. The other two defendants, C. E. Boag and Loren D. Curtis, answered. The trial court made findings in favor of the plaintiff and from the judgment entered thereon the defendants have appealed.

In form the action is one for an accounting. The defendants assert it is one for money had and received. For reasons that will hereinafter appear we think the assertion of the defendants may not be upheld.

Before proceeding it should be stated that in the early part of the year 1928, M. P. Austin and Mary C. Austin, his wife, were the owners of lots 98 and 118 of tract 1017, said lots being known as 4513 and 4504 Atoll Street, Los Angeles, California. Both lots were paid for, hut they did not have additional funds for building purposes. Mr. Austin was actively engaged as a contractor in the concrete business and as such in installing sidewalks, curbs, foundations and similar structures. Harry E. Jones, Inc., a corporation, was engaged in building and constructing dwelling houses. The defendant C. E. Boag was engaged in purchasing lots, building thereon, and then selling the lots together with the improvements. At about the time mentioned above he was the owner and interested in improving lots 4160, 4166, 4144 and 4148 on Camellia Avenue. With him was associated the defendant Loren B. Curtis, who acted as his superintendent of construction. Whether Mr. Boag or Mr. Curtis, or both of them, engaged directly in the construction business the record does not show. Commencing in the early part of the year 1928, after holding various conversations, Mr. Austin and the two defendants entered into oral agreements hereinafter mentioned. As shown by the uncontradieted evidence, Mr. Austin and the two defendants entered into an agreement to build a bungalow on each lot owned by Mr. Austin. Mr. Boag undertook to negoti[364]ate the largest loan he could obtain on each lot and the three parties planned to build on each lot the best building they could build for the moneys so borrowed. Mr. Austin agreed to do the concrete work, Mr. Curtis agreed to superintend the construction, and Mr. Boag agreed to negotiate the loan and attend to the finances. To accomplish those purposes it became necessary that the title to the lots should be vested in Mr. Boag. Accordingly, both lots were deeded to him. He negotiated a loan of $4,000 on one lot and $3,750 on the other. Harry E. Jones, Inc., entered into contracts with him under the terms of which that company furnished, under the supervision of Mr. Curtis, the materials and labor and billed Mr. Boag therefor. The latter collected the moneys borrowed and paid the bills presented by Harry E. Jones, Inc. Mr. Austin did the concrete work. He did not personally pay for any labor or material except the concrete work. As to that work it was not claimed he was paid in cash nor otherwise than as will hereinafter be set forth. The defendants testified and supported their testimony by the vouchers of Harry E. Jones, Inc., that all moneys received by Mr. Boag were paid out for work and materials in constructing the bungalows. There was no evidence to the contrary. Mr. Boag also paid out of his own funds $175.51 to pay for said expenses. The houses were built and fully completed prior to July 12, 1928. On May 4, 1928, Mr. Boag reconveyed both lots to Mr. Austin. Acting under the directions of Mr. Curtis, the concrete work on the Camellia lots was done by Mr. Austin for Mr. Boag.