Griffin v. Van Winkle

PEEK, J. By their complaint plaintiffs sought to recover the contract price for certain doors allegedly sold and delivered by them to the defendants, or in lieu of payment, for the return of the doors. The cause was heard by the court sitting without a jury, and judgment was entered for plaintiffs. Defendant Van Winkle alone appeals.

The complaint is in three counts. The first count alleges that on February 24, 1947, plaintiffs sold and delivered to defendants 627 doors for an alleged agreed price of $6,136.25; that payment for the doors was made by a check executed by Gerald M. Goldstein payable to defendant Collins and endorsed in blank by Collins; that Collins was the agent of defendant W. S. Van Winkle individually, and doing business as Chicago Lumber Company; that when the check was [231]presented for payment the account upon which it was drawn was closed; and that plaintiffs’ demand for payment or a return of the doors was refused by the defendants, excepting 300 of the doors which were returned. The second count incorporates by reference the allegations of the first cause and in addition charges that Van Winkle and Collins were engaged as partners in the business of buying doors. The third is a common count for goods sold and delivered. No appearance was made by Collins. Van Winkle by his answer denied that Collins was his agent; that he and Collins were partners in the business of buying doors or that plaintiffs sold any doors to him. The return of the 300 doors was admitted but he alleged they were returned pursuant to an agreement with plaintiffs that they would assert no claim for the balance of said doors.

The findings of the court were that defendant Collins was the agent of, and joint adventurer with, defendant Van Winkle, individually and doing business as Chicago Lumber Company; that the doors were sold and delivered and payment was made as alleged in the complaint; that plaintiffs’ demand for payment or return of the doors was refused, and that the said 300 doors were not turned over to plaintiffs by defendants pursuant to an understanding that plaintiffs would not assert a claim for the balance.

The evidence shows that appellant is engaged in the lumber and construction business at Port Chicago. Approximately six weeks prior to the transaction which forms the basis for the present action he and defendant Collins, who was a carpenter foreman, joined in a business venture which was described by them as being substantially in the nature of a partnership or joint venture. It appears that Collins, because of certain connections, knew where sash and doors could be obtained. Appellant, who was a builder, needed large quantities of such materials, hence they associated together, appellant furnishing the finances and Collins obtaining the materials and selling all in excess of appellant’s needs. The profits, if any, were to be divided equally. Pursuant to their agreement Collins arranged for the purchase of a carload of doors from one Goldstein. One-third of the total cost was advanced by appellant to Goldstein as a down payment. Goldstein failed to deliver the doors and after considerable delay appellant and Collins decided, as appellant testified, to “call it all off”; Collins, however, stating that in “the