Espinola v. Provenzano

California Court of Appeal Jan 17, 1958 No. Civ. No. 17452Published

Before: Dooling

AI Brief

AI-generated · verify before citing

Holding. The court held that the plaintiff was entitled to recover his investment as money had and received because the consideration for the payment failed when the defendants failed to provide the contractually required balance sheet to determine the plaintiff's interest.

Issues

Whether the plaintiff was entitled to recover his investment on the theory of money had and received due to a failure of consideration.
Whether the trial court erred in finding that the plaintiff never became a partner in the defendants' business.
Whether the trial court erred in denying a continuance to the defendants to produce a balance sheet at the close of trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The action was in essence one for money had and received where the consideration has entirely failed.”

“His interest was never determined, owing to appellants’ failure to furnish the data expressly required by the contract.”

“The court was justified in its determination that the consideration for his payment had failed.”

DOOLING, J. In this action plaintiff recovered from the appealing defendants the sum of $17,050 on a common count for “monies advanced to . . . defendants at their instance and request, no part of which has been paid.”

[761]The evidence shows that defendants Provenzano and Beltran were conducting a business as copartners under the name and style of Provenzano Food Company. On June 5, 1953, respondent gave his check for $6,000 to Provenzano together with a label machine valued by agreement at $1,000. He received a receipt reading as follows:

“R. B. Provenzano Food Company does hereby acknowledge receipt of advances to date from John Espinóla of the total sum of $7,000.00 said sum to be credited to John Espinóla toward his total contribution of $17,000.00 for an interest in the R. B. Provenzano Food Company, Felipe Avenue, San Jose; it being understood that the parties are considering the forming of a corporation or a limited partnership in which John Espinóla shall have an interest as his total financial contribution bears to the total value of the R. B. Provenzano Food Company; said total value of the R. B. Provenzano Food Company being the value of the R. B. Provenzano Food Company, as set forth by a balance sheet as of May 31, 1953, to be submitted by the accountant for the company, plus the said total contribution of John Espinóla of the said sum of $17,000.00. Dated June 5, 1953. Signed R. B. Provenzano Food Company, by R. B. Provenzano.”

It is not disputed that thereafter respondent paid and defendants received pursuant to this agreement, including the label machine valued at $1,000, the total sum of $17,050 for which judgment was recovered. (No point is made in the briefs of this excess of $50 over the amount mentioned in the writing.)

A corporation under the name of Provenzano Food Products was incorporated by the parties in October, 1953, but no stock thereof was ever issued.

An answer was filed on July 1, 1955, denying the essential allegations of the complaint and specially alleging that for the sum of $17,000 plaintiff agreed to accept stock in a corporation to be formed, that said corporation had been formed on October 23, 1953, and that at all times since that date defendants had been willing to perform said agreement but that plaintiff refused and still refuses to accept the interest in said corporation in return for his investment.

Espinola v. Provenzano

AI Brief

More from California Court of Appeal

Related research

AI Brief