Smith v. Wood

SHINN, P. J. Defendant, Jimmie Wood, appeals from a judgment entered against him in the sum of $17,882.14, together with interest thereon in the sum of $3,179.44 and costs incurred by plaintiff Mark Twain Smith in the sum of $40.40.

The contentions presented for determination on the appeal are: Whether the trial court committed prejudicial error in reopening the case for further proceedings on the hearing of defendant’s motion for a new trial and permitting plaintiff at that time to amend his complaint to conform with the proof adduced at the trial; that said action was not taken within the time allowed for decision on motion for new trial; and that the evidence does not support the findings.

The record shows that plaintiff was in the business of training horses and furnishing acts to shows and that in January, 1946, he had a series of oral conferences with defendant Wood with respect to furnishing a “twelve-horse liberty act” for a show known as the 101 Ranch Wild West Show which was to play in different parts of the United States during the circus season of 1946. In his complaint, plaintiff alleged that he had an oral contract with defendant to furnish this act to the show owned and operated by defendant at a salary of $1,375 a week from March 11, 1946, until October 24, 1946, and that there was due and owing to him the sum of $18,-569.64. Defendant denied that he was indebted to plaintiff and as a separate defense alleged that plaintiff’s services were [98]rendered under an agreement with the California Circus Corporation, a California corporation, and that he 11 did not enter into any agreements, either written or oral, with plaintiff.”

It was stipulated that the articles of incorporation of the California Circus Corporation were signed and acknowledged on March 2, 1946, and were filed in the office of the Secretary of State of California on March 27, 1946.

On the cross-examination of plaintiff, it was disclosed that he had entered into a so-called written contract on March 16, 1946, wherein he had agreed to furnish a troupe of 13 persons to perform services for the 1946 season of the 101 Ranch Wild West Show in exchange for the weekly compensation of $1,350. This mimeographed sheet, entitled “Artist’s Agreement or Contract” was signed by John F. Kernen, as Auditor, 101 Ranch Wild West Shoiv. Defendant denied that Mr. Kernen was either his agent or the auditor for the 101 Ranch show but admitted he was auditor for the corporation and authorized to sign contracts in its behalf; he conceded that plaintiff’s salary was to be $1,375 per week, rather than the $1,350 provided for in the contract but denies that he was personally liable therefor and contends that plaintiff’s agreement was with the corporation.