Daluiso v. Nicassio

BARNARD, P. J. In this action the plaintiff sought to recover for certain services and materials alleged to have been furnished to the defendants during a part of 1933 and a part of 1934. The court found in all respects in favor of the defendants, and the plaintiff has appealed from the judgment. The court’s finding that the defendant Cimmarusti was not a party to the transaction in question is not attacked. We will, for convenience, refer to the defendant Nicassio as the respondent.

It appears from the evidence, as well as from the findings, that in March, 1933, the appellant gave to the respondent an option to purchase certain real property owned by him and suggested that the respondent build a building thereon to be used as a winery. It was agreed that if the option was not exercised the appellant would repay to the respondent the cost of the building. To secure the respondent the appellant gave him a note for $4,000 secured by a mortgage on the premises. The respondent advanced to the appellant some $6,000 of which about $2,800 was used in the erection of the building. The appellant also purchased some grapes for the respondent and furnished him with other materials and services. The appellant also- operated a store on the premises in which he sold some wine obtained from the winery operated by the respondent.

In July, 3934, the respondent informed the appellant that due to a lack of water on the premises it was impossible for him to continue to operate this winery and that he would not [711]exercise his option for the purchase of the property. The respondent then constructed a building for a winery on other land purchased by him, using certain cement blocks which were made for him by the appellant. Thereafter, the appellant and the respondent “audited” their respective books and it was ascertained that the appellant owed the respondent a balance of $714. The respondent then employed the appellant to work in the new winery at a salary of $20 a week, $5 of which was to be paid in cash and the balance applied on the appellant’s indebtedness. After he had worked three weeks the appellant was discharged by the respondent.

Thereafter, the appellant went to the respondent and requested him to return the $4,000 note and mortgage, offering to permit the respondent to remove the building which had been erected upon the appellant’s property. A written agreement was prepared under date of October 27, 1934, in which it was agreed that the “possession and control” of the appellant’s property, upon which the first winery had been erected, should be delivered to him and that the respondent should have the right to remove that building therefrom. Before this agreement was signed the appellant told the respondent that he wanted a clause inserted therein releasing each of the parties from all obligations of every kind and nature, stating that “I am afraid that sometime in the future you might sue me for the money which I still owe you”. Thereupon, a further clause was added to the agreement reading: “This is to satisfy both party of the first part and party of the second part, and there shall be no more claims made”, and the agreement was signed by both parties with a witness to their signatures. The respondent then returned to the appellant the $4,000 note with a release of the mortgage securing the same.