Fruns v. Albertsworth

NOURSE, P. J. Two appeals have been consolidated for hearing, one taken from a judgment following an order sustaining a demurrer to the second amended complaint without leave to amend (No. 12911), the other from an order dissolving an attachment in the same cause (No. 12893).

The first cause of action is one on a written contract dated October 18, 1943, but the place of execution is left in confusion because of the record in the attachment proceedings, which will hereafter be noted. On the face of the agreement it is stated that it was executed at Nogales, Arizona. In the original complaint which appears in the record on the second appeal, and to which we may refer by the stipulation of consolidation, it is alleged that the agreement was executed at Hermosillo, Mexico, but was dated at Nogales, Arizona, for the express purpose of having the laws of the State of Arizona control its provisions. In the second amended complaint to which the demurrer preceding the judgment was sustained it is alleged that the agreement was executed at Palo Alto, California. Confining our discussion therefore to the order sustaining the demurrer to the second amended complaint we must assume that the cause of action is based upon an agreement executed in this state and therefore it is to be interpreted by the rules applicable in this state.

Though a number of parties were made defendants the demurrer and judgment relates only to B. F. Albertsworth and his wife. They were sued on the theory that by the terms of the written contract they undertook to pay the plaintiff the sum of $5,000 which it is alleged the plaintiff advanced to them “respectively, jointly, and severally.” The provisions of the contract upon which the action is founded read:

“Special provisions concerning Mr. Fruns’ brother (Jose Fruns) and Mr. Fruns himself, (Pedro J. Fruns) before formation of proposed corporation.

[320]“Before the corporation is formed, and before any profits accrue to the corporation, it is agreed between the parties that Mr. Fruns shall discharge to his brother an obligation of approximately $5,000.00—FIVE THOUSAND DOLLARS, U. S. Cy., equivalent to $25,000—twenty-five thousand pesos Mexican currency, from net profits of the sales of ore or concentrates. ’ ’

It will be noted that the parties therein agreed to this and nothing more: that “before the corporation is formed and before any profits accrue to the corporation” Pedro J. Fruns shall discharge to the plaintiff an obligation apparently owed from brother to brother. There is no language in this or any other portion of the contract which would support an inference that the defendants Albertsworth undertook to discharge Pedro’s obligation to his brother.