Altman v. Bautzer

WHITE, J. This is an appeal by plaintiff from an adverse judgment rendered in an action brought to recover the sum of $4,000 and interest thereon.

The factual situation leading up to and forming the basis of this litigation may be thus epitomized: Maier Brewing Company, a corporation doing business in the city of Los Angeles, employed plaintiff over a period of years. In 1936 an involuntary bankruptcy proceeding was filed in the United States District Court for the Southern District of California, Central Division, against the brewing company. This proceeding was pending for some time, including the year 1938. In such bankruptcy proceeding plaintiff had filed a claim in the amount of $196,709.05, which claim, it was stipulated at the trial, was on January 15, 1938, disallowed for the sum claimed, but allowed as a general claim in the bankruptcy proceeding in the sum of $4,500. It was further stipulated that during the year 1941 plaintiff filed a claim against the brewing company for said sum of $4,500.

During the year 1938, defendant was president of Maier Brewing Company. Following negotiations between plaintiff and defendant looking toward a settlement of the former’s claim against the brewery, a written agreement was entered into between the parties to this litigation on January 6, 1938, wherein it was recited that defendant had purchased all of the stock of Maier Brewing Company from the receiver of [545]the estate of Edwin R. Maier, alleged bankrupt, then also being administered in the United States District Court aforesaid. The agreement between the parties also provided that plaintiff agreed to sell to defendant and the latter agreed to buy plaintiff’s claim filed in the brewing company bankruptcy proceeding, as well as all other claims plaintiff might have against such concern. In consideration therefor, defendant agreed to deliver to plaintiff a promissory note of Maier Brewing Company in the sum of $4,000, payable on or before three years from the date of its execution, a copy of the note to be so executed and delivered being attached to the agreement and marked “Exhibit A.” There also appears on the proposed note the following: “I hereby guarantee payment of the within note and waive presentment and notice of protest of nonpayment. (Signed) Gregson Bautzer.” The note, however, was never executed or delivered. By the terms of the aforesaid agreement, defendant further contracted to and did pay to plaintiff’s attorney the sum of $500 on account of professional services rendered by such attorney to plaintiff. The agreement further contained certain provisions, not here pertinent, by which the note might be liquidated otherwise than by payment of the amount thereof. The contract also contained the provision that defendant would deliver to plaintiff “at the time of the delivery of said promissory note referred to in par. 2(a) hereof, a resolution of the board of directors of Maier Brewing Company authorizing the execution and delivery of said note. ’ ’