Oppenheimer v. Minks

BRAY, J. Trial was had upon plaintiffs’ fourth amended complaint, containing two counts: (1) for damages in the sum of $3,018.56 for alleged defects in the construction of certain buildings erected by defendant Leroy N. Minks for plaintiffs; (2) a common count for moneys had and received in the sum of $6,983.64. During the trial, the court, over defendants’ objection, permitted plaintiffs to amend the first count to conform to the proof by decreasing the amount alleged to be due and prayed for to $2,574 and the second count by increasing the amount alleged to be due and prayed for to $9,923.27. Defendants appeal from a judgment on a jury verdict in the sum total of the amended amounts prayed for in the two causes of action.

Questions Presented

1. Was the cause of action changed either by proof or amendment to conform to proof, and was there a variance from the bill of particulars?

2. Instructions.

3. Should the issue of defendants’ partnership have been submitted to the jury?

4. Alleged misconduct of court.

5. Court’s refusal to admit “Dissolution Agreement.”

6. Court’s refusal to order plaintiffs to produce their own accountant's report.

Facts

The parties had been close friends over a period of years. Defendant Leroy Minks had made investments, managed property and made collections for plaintiffs during this time. Defendants Leroy and Evelyn were husband and wife. Both were licensed separately as real estate brokers.* Over a period of several months plaintiffs and defendants discussed [487]the feasibility of constructing some apartment houses, with parking spaces or garages on real property belonging to plaintiffs. It was originally planned to build eight apartments at a cost of about $40,000. There was a conflict in the evidence as to whether there was an oral contract between the parties, and if so, whether the apartments were to be constructed for a fixed sum or on a cost-plus basis. On March 5,1951, plaintiffs borrowed $25,000 from a bank and deposited it and approximately $15,000 they had, in a special fund in the bank, called the ‘‘Oppenheimer Building Fund” on which checks for building expenses were to be drawn by defendant. A building permit was obtained and the work started. Up to this point all understandings were oral. A few days later the bank requested that defendant supply it with a statement of the transaction. Defendant complied with a statement dated March 26th, in which he agreed to erect eight units shown on accompanying blueprints for $37,500 plus proposed garages to cost $2,500, making a total of $40,000. Plaintiffs were to pay for additional work, if any, and “whatever amount of said forty thousand dollars is left after said building is completed, said sum shall be the property” of plaintiffs. Defendant for his services was to receive $1,500 payable when plaintiffs deemed the money was earned. Some question arose as to whether steel and good building material could be obtained. When it was found that it could, the parties decided to build four stores in the place of the garages. The evidence is conflicting as to what the stores were to cost. Plaintiffs testified defendant told them the stores' total cost would be between $4,000 and $6,000. Defendant testified that he estimated the stores would cost $4,000 to $6,000 per unit. However, he told the Oakland Building Department that all stores would total $6,000. He testified that he said this to keep the cost of the building permit low and to permit lower tax assessment on the property. Because of the construction of the stores, further capital was needed, so plaintiffs borrowed an additional $10,000. Plaintiff Josephine testified that $6,000 of this was for the stores and the remaining $4,000 for remodeling other property of plaintiffs. About $11,000 more which came from plaintiffs’ income property plus an additional $1,000 was put in the fund. Plaintiffs testified that defendant was not authorized to spend this money. Certain changes were made in the building plans which added to the original estimated cost of the building. In October or November, when the work was substantially