Karallis v. Shenas

BARNARD, P. J. The defendant appeals from that portion of a judgment which awards the plaintiff $1,000 with interest. The action was one for damages for fraud and misrepresentation in connection with the sale of part or all of a restaurant business to the defendant. On a prior appeal a judgment of dismissal was reversed, this court holding that there was conflicting evidence on the material issues and that the plaintiff’s cause of action was not barred either by the statute of limitations or by another rule of law there relied upon. (Karallis v. Shenas, 41 Cal.App.2d 694 [107 P.2d 395].)

The facts are rather fully set forth in our opinion on the prior appeal and need not be repeated in detail here. The plaintiff and one Callas, as copartners, operated a restaurant in a building they leased from the defendant. Callas died in May, 1931, and through proceedings in his estate the defendant purchased at least his interest in the restaurant for $1,000, taking possession in October, 1931. The plaintiff contends that through certain fraud and misrepresentation he was induced to sell and permit the sale of the business to the defendant, and to loan the defendant $1,000 with which to purchase the estate’s interest in the business, on the agreement that the defendant would repay to him the $1,000 thus advanced, plus $1,059.40 owed to the plaintiff by Callas and secured by a note and chattel inortgage on the restaurant fixtures, and that he and the defendant would then operate the restaurant as equal partners.

The defendant contends that there was no such agreement; that he bought the entire business from the estate for $1,000; that he borrowed no money from the plaintiff but that the plaintiff agreed to pay him $1,000 to cancel the lease on the restaurant property, of which only $700 was actually paid; that after he acquired the sole ownership of the property the plaintiff worked for him as a cook, at first for $40 a week and later for one-half of the monthly profits; that the plaintiff quit work in November, 1932, and refused to go back; and that the plaintiff is neither entitled to any interest in the business nor' to any payment.

On a retrial of the action the court found in all respects in favor of the plaintiff, and awarded him a judgment in the sum of $2,059.40, being $1,000 for the amount loaned by the plaintiff to the defendant in connection with the sale and $1,059.40 for the note and mortgage originally given by Callas [478]to the plaintiff, with interest on both amounts from certain dates. A new trial was granted with respect to the “mortgage ’ ’ item and a judgment entered for the other $1,000 with interest, and the defendant has appealed from that portion of the judgment.