Douglas v. Foster

WILSON, J.— This is an action to recover moneys alleged to have been paid by plaintiff for defendant’s benefit and for [745]services performed. By his answer defendant denies he is indebted to plaintiff and counterclaims for money had and received. From a judgment in favor of defendant in the amount of $444.38, plaintiff appeals.*

The only question raised upon appeal is whether the findings are supported by the evidence.

In 1942, defendant leased from one Jacob Christen a furnished café and adjacent cottage in the vicinity of San Dimas, California. At the same time defendant employed plaintiff to manage the café. It was agreed between the parties that in addition to board and lodging plaintiff was to be paid $5.00 a day in cash, his wife was to receive $2.00 a day and plaintiff was also to receive 40 per cent of the net profits of the business. Some time later plaintiff’s pay was increased to $7.00 a day and that of his wife to $3.00 a day.

About May, 1944, plaintiff bought the property upon which the restaurant was located and the equipment from Christen. On September 1, 1944, defendant entered into a lease with plaintiff, the lease providing that alterations and repairs were to be made at the expense of the lessee and to become the property of the lessor at the termination of the lease; lessee was to maintain the equipment and motors in good working condition and to pay for any repairs which might be required due to ordinary wear and tear.

The business was operated in the following manner: Plaintiff purchased the liquor, food and supplies and hired and paid the employees. He paid all the bills except the rent, social security, unemployment insurance and withholding taxes which were paid by defendant. Some of the bills were paid by plaintiff in cash when the goods were delivered or purchased and others were paid by check. All wages were paid by cash. Plaintiff deposited the receipts in the bank in the same account in which he kept his personal funds. At the end of each month he took the cash register tapes representing the receipts of the café, subtracted the total expenses paid by him and drew a check for the credit balance, if any, which he deposited in another account upon which only defendant [746]