Fedele v. Dowling

GRIFFIN, Acting P. J. Plaintiff’s original complaint sought judgment for $8,533, plus interest against defendant and appellant for breach of an oral agreement to purchase plaintiff’s interest in the D. G. Granite Business owned by plaintiff and Paul E. Burton. Defendant answered and claimed that the agreement was in writing and according to its interpretation the sale was made upon different terms from those alleged in the complaint.

During the course of trial the court suggested that plaintiff amend his complaint to conform to the proof. The amendment was made where in one cause of action plaintiff sought to recover $8,000 on the breach of a claimed oral agreement to sell. In a second cause of action he sought to recover $1,100, claimed to be due for unpaid labor claims payable under some oral agreement, which agreement was confirmed by a written agreement. In a third cause of action plaintiff claimed there was a written agreement by defendant to. pay $7,500, less the amount of certain repair bills agreed upon, for the interest in the business, as ■ well as $1,100 wages which the parties agreed were due. The fourth cause of action was for $8,000, excluding the repair bills and wage claims, predicated upon a contract entered into by mutual mistake, in which reformation of the contract is sought. In a fifth cause of action declaratory relief is sought declaring the respective rights of the parties. Copies of the writings are attached to the amended complaint.

After plaintiff rested and during the production of defendant’s evidence, defendant sought to have his answer amended to show claimed fraud and misrepresentation on the part of the plaintiff relating to the amount of the repair bills. The motion was granted but it does not appear that.such [429]an amendment was filed. The court entered judgment for $8,770 plus interest, and defendant appealed.

The evidence shows that plaintiff and Burton were co-partners doing a granite business under the name of Hilldale Trucking Company upon property leased from one Kelly Yount.

The granite company owned certain equipment used in the business which was subject to certain purchase liens amounting to $2,867. Plaintiff decided to sell his interest in the business in which he claimed he had an $8,000 investment. It is plaintiff’s testimony that early in August, 1951, in response to an ad, defendant orally agreed and arranged to purchase the interest of plaintiff for $8,000, but defendant did not appear at the escrow office the next day; that about two weeks later the parties again met in an attorney’s office with Mr. Yount and the deal was outlined. On August 18, 1951, defendant, Burton, Yount and others met at the partnership office and defendant presented a typewritten proposal (Exhibit B) which he had prepared and in which it is stated: “I propose to buy the D. G. Business . . .’’on certain conditions, one, to place $100 in escrow; two, defendant to take possession on August 20th, and Burton to give clear title to equipment (listing it). Then follows a notation written in green ink: 11 Title to pass at once. ’ ’ Then follows a sentence: “Including repair bills past and to put in running condition,” with a line drawn through this sentence with green ink. Then follows the typed statement: “I will pay . . . Fedeli $7500.00 less that amount of money necessary to clear the above equipment including the current and past repair bills. . . . Mr. Yount will furnish me a lease, immediately, on the entire set-up, Mr. Burton having signed off his lease to Mr. Yount.” The lease was to run for five years at $500 per month, starting September 1, 1951, with an option to purchase, Yount to underwrite the operation to the extent that if the business did not show a net profit of $1,500 per month for the first six months Yount was to give one year free rent. This exhibit is signed by Yount, and Burton and contains some pencil notations which the several parties endeavored orally to interpret to the court, but they did not agree upon their meaning.