Rose v. Ames

California Court of Appeal Mar 19, 1945 No. Civ. No. 14540Published

Before: York

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Holding. The court held that a contract providing for a commission on funds recovered via sale or compromise of a judgment applies to a settlement where the judgment creditor sold the judgment to the debtor's spouse, as this constituted a compromise of the judgment. The court further held that prior appellate statements regarding the contract's interpretation in a dismissed pleading did not constitute res judicata for a subsequent action tried on the merits.

Issues

Whether a prior appellate decision regarding the sufficiency of a complaint's allegations constitutes res judicata in a subsequent action tried on the merits.
Whether a sale of a judgment to a judgment debtor's spouse constitutes a 'compromise' of the judgment under the terms of a commission agreement.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The complaint herein is a new and different pleading, defendants’ demurrers thereto were overruled, and the judgment from which the appeal herein is taken was rendered after a trial on the merits.”

“It is obvious that the purported sale of the judgment to the wife of the judgment debtor was in reality a compromise and settlement of the judgment outstanding against her husband.”

YORK, P. J. The record herein discloses that plaintiff is engaged in the business of tracing assets of judgment debtors and assisting attorneys in the collection of judgments. Also, that defendant Silverstein on July 29, 1937, recovered in the Superior Court of Los Angeles County a judgment for [445]$18,983.66 and costs against John A. Woodward, Jr., which judgment was based on a prior judgment against said Woodward recovered on November 17, 1931, by defendant Silver-stein. The defendant Ames was attorney for defendant Silverstein in both of these actions. Nothing had been realized on either judgment except that a partial satisfaction thereon was made in the sum of $1,431 on December 22, 1938.

On December 19, 1938, plaintiff Rose met the defendants at the office of defendant Ames, at which time the following agreement, in the form of a letter (Plaintiff’s Exhibit 1) was executed by the defendants:

“December 19, 1938

Golden State Finance Company, Los Angeles, California, Attention:

Mr. H. L. Rose. Dear Sir: In accordance with our con-

versation, you have informed me of the fact that you are in a position to give me information whereby I may levy upon property belonging to John A. Woodward, Jr., under an execution issued in the judgment secured by Mrs. Waunetta G. Silverstein against Mr. Woodward in Superior Court Case No. 409108.

“It is understood the information which you are to give me is of sufficient definite nature that it will enable me on Mrs. Silverstein’s behalf to levy upon the property designated by you, said information being sufficiently definite to both as to the nature of the property to be levied upon and its location.

“It is understood and agreed that there will be no expenses incurred or necessary in order to recover under an execution upon said property, other than the usual costs of levy and sale.

“It is further understood and agreed that for and in consideration of the giving of the information to E. Neal Ames on behalf of Mrs. Silverstein, you are to receive one-third (Ys) of all moneys recovered either by sale or compromise, after deducting all costs incurred by Mrs. Silverstein in connection with the levy upon the property from the information furnished by you.

Rose v. Ames

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