Devencenzi v. Donkonics

WARNE, J. pro tem.* This is an appeal from a judgment in favor of the defendants entered after appellants declined to amend their amended complaint after the sustaining of a demurrer thereto.

The complaint as amended was in two counts. The first alleged that the defendants were indebted to the plaintiffs in the amount of $4,000 for merchandise sold to defendants pursuant to an oral agreement. The second alleged that appellants were engaged in a joint enterprise of cutting and selling Christmas trees at wholesale; that respondents were engaged in a joint enterprise of selling Christmas trees at retail, and that the respondent Donkonics on behalf of himself and the other respondents made the following offer to appellant Wattenburg:

“Agreement

November 13,1956

“Dear Sir:

This is in regard to our conversation on the 10th of November referring to 1600 to 2000 Christmas Trees at $2.00 [515]each, running 6' average each, and selection of good marketable trees. I will pay cash upon loading in box cars.

If this is agreeable to you please sign the two copies. Keep one for your files and return the other copy to me as soon as possible.

Hoping this finds you satisfactory,

Sincerely,

/s/ Michael Donkonics_

Michael Donkonics Pinole Salvage Company Pinole, California

Mr. Wolburg Box 25

Greenville, California ’ ’

The amended complaint further alleged that appellant Wattenburg, on behalf of himself and the other appellants, accepted the foregoing offer in writing and mailed said acceptance to respondent Donkonics, but that thereafter respondents repudiated the agreement and refused to accept or pay for the 2,000 Christmas trees, which were available for delivery to them. The prayer was for damages in the amount of $4,000.

A demurrer to the amended complaint was sustained “upon the ground that the Complaint alleges an oral agreement, apparently within the Statute of Frauds, without alleging facts, if they exist, sufficient to remove the bar of the statute. It appears that the Court would not be entitled to indulge the. presumption that the contract is in writing, where it appears upon the face of the complaint itself that plaintiffs rely, at least in part, upon the oral contract.”