Johnson v. Klein

BRAY, J. Defendant Sorenson alone appeals from a judgment in favor of plaintiffs.

Questions Presented

As nearly as we can determine from defendant’s briefs (he has completely disregarded Rules on Appeal 13 and 15(a)) defendant’s contentions are: (1) Insufficiency of the evidence. (2) The findings and judgment contradict themselves. (3) The judge was querulous and arrived at conclusions adverse to defendants before hearing their evidence. No specifications are given, references made to the transcript, nor specific instances cited. For that reason, ordinarily we would disregard this contention. However, we have diligently studied the transcript and fail to find the slightest support whatever for this contention. The judge appeared to be eminently fair throughout and his decisions of all issues are not only supported, but required, by the evidence. (4) The court did not order an accounting. Defendant at no time in the trial court asked for one. (See Campbell v. Birch, 19 Cal.2d 778, 794 [122 P.2d 902].) Moreover, none is required. Plaintiffs’ recovery is on agreements, not on open account.

Record

The first count of the amended complaint was against defendant Klein alone for $4,000 for moneys had and received. The second count was against defendants Sorenson and Clifford for violation of an agreement to sell plaintiffs a certain business and for damages in the sum of $5,550 (this included $4,000 alleged to have been deposited with defendant Klein as escrow agent under said agreement). The third count was for specific performance of said agreement. The fourth count was against defendants Sorenson and Clifford for $5,550, the agreed consideration for a certain assignment executed by [579]plaintiffs to defendant Sorenson. The prayer was for $4,000 against defendant Klein, and $5,550 against the other defendants. Clifford was not served and did not appear. The court gave plaintiffs judgment against defendants Klein and Sorenson jointly for $4,000 plus interest and against defendant Sorenson for an additional sum of $1,550 and interest.

1. Sufficiency of the Evidence.

The, action grew out of a purported sale of a half interest in a bar business in San Francisco. The bar originally belonged to Mrs. Clifford's husband. On Ms death she was operating it as administratrix of his estate. Apparently she claimed personal ownership of a half interest in it because of community rights and desired to dispose of the estate’s half. Although defendant Sorenson appeared to have no interest in the bar, he represented to plaintiff John that he owned it and offered to sell a half interest in it to plaintiff John. Mrs. Clifford joined in representing to plaintiffs that Sorenson owned the interest he was attempting to sell. Plaintiff John did not have the $4,000 which Sorenson required as a down payment. His mother, plaintiff Lena, put up the money. Sorenson, Mrs. Clifford and plaintiffs met in defendant Klein’s office. He is an attorney. The terms of the sale were discussed and agreed upon. Plaintiff Lena had a cashier’s check for $4,000 present which she gave to defendant Klein upon his giving plaintiffs an “Escrow Receipt” dated November 22, 1949. This reads: “Received from Lena Johnson for John Johnson” a cheek for $4,000 “as a deposit on the purchase of that certain business” describing it, “now being conducted by Maloa Clifford as administratrix of the estate of Wick Clifford, deceased, upon the following terms and conditions: