Fowler v. Case

SHINN, P. J. This is an appeal by plaintiff and cross-defendant, Roseoe Fowler, from a judgment ordering him to vacate a residential property which he had conveyed to defendant and cross-complainant, William A. Case, pursuant to the terms of a written agreement, and also denying Fowler damages claimed by reason of an alleged breach of the agreement by Case.

Fowler Engineering Works, hereinafter referred to as the company, was owned by James T. Fowler; Roseoe Fowler was an employee of the business; Case owned another manufacturing business. On June 7, 1944, the three men entered into a contract which provided for the formation of a partnership between Roseoe Fowler and Case to take over the business of the company. The provisions of the agreement material here were the following: It recited that James T. Fowler was the owner of the business and Roseoe Fowler the owner of the property involved herein; that the contracting parties were desirous of entering into a partnership between Case and Roseoe Fowler to take over the business of the company; that Roseoe Fowler desired the immediate use of $5,000, and agreed to sell his house and lot for that sum; that Case was willing to enter into the partnership and agreed to purchase the house free and clear of encumbrances for $5,000; that in consideration of the payment of said sum, James T. Fowler agreed to transfer the business to the partnership that was to be formed, to employ E. R. Shaw, or any other person designated by Case, as general manager, for a period of not more than two years or until Roseoe Fowler [142]and Case should enter into the partnership agreement which was attached as an exhibit; to employ Case on a consulting basis at $75 per week until the partnership was formed, but for not more than a period of two years; Eoscoe Fowler agreed to pay the taxes, upkeep and assessments on the house “until said Eoscoe Fowler and William B. Case shall enter into the partnership agreement attached hereto or for two years, whichever shall be the sooner, and if said Fowler Engineering Works shall not become solvent for a period of three consecutive months within the next two years that said Eoscoe Fowler shall at the end of two years relinquish possession of said house and lot described herein to said William B. Case upon demand, or shall pay to William B. Case the sum of $5,000, plus accrued interest at the rate of six per cent. 3. To enter into the partnership agreement attached hereto with William B. Case upon the delivery by William B. Case of a quitclaim deed to the property described herein, and at that time to demand that James T. Fowler transfer all of his interest' in Fowler Engineering Works to said partnership. ’ ’ Case agreed: to pay Eoscoe Fowler $5,000 for a deed to the house and lot; to act as consultant in the management and operation of the company at a salary of $75 per week until such time as Eoscoe Fowler and William B. Case should enter into the partnership agreement or for a period of two years, whichever shall be the shorter. ‘ ‘ To allow Eoscoe Fowler to occupy the house and lot described herein, rent free, until such time as Eoscoe Fowler and William B. Case enter into the partnership agreement attached hereto, or for a period of two years, which ever shall be the shorter, provided, however, that Eoscoe Fowler shall have the right to repurchase the house and lot described herein for the sum of $5,000, plus interest at the rate of six per cent from date hereof upon happening of either of the following conditions: (a) that Eoscoe Fowler and William B. Case shall mutually agree to terminate this agreement; (b) that Eoscoe Fowler and William B. Case shall not have entered into the partnership agreement at the end of the two year period hereinabove set forth; ... to hold the house and lot hereinbefore described without selling or placing any encumbrance thereon until the partnership agreement attached hereto is entered into by Eoscoe Fowler and William B. Case, or for a period of two years, which ever shall be the shorter, and at the time of entering into said partnership agreement to quitclaim said house and lot to Eoscoe Fowler. It is mutually agreed by