30 Cal. App. 2d 362 | Cal. Ct. App. | 1939
The plaintiff filed a complaint against several persons asking for an accounting. She named certain fictitious individuals as defendants but she did not serve anyone claimed to be the fictitious defendant. She also named Harry E. Jones, Inc., a corporation, as one of the defendants. Before the trial the action was dismissed as to that corporation. The other two defendants, C. E. Boag and Loren D. Curtis, answered. The trial court made findings in favor of the plaintiff and from the judgment entered thereon the defendants have appealed.
In form the action is one for an accounting. The defendants assert it is one for money had and received. For reasons that will hereinafter appear we think the assertion of the defendants may not be upheld.
Before proceeding it should be stated that in the early part of the year 1928, M. P. Austin and Mary C. Austin, his wife, were the owners of lots 98 and 118 of tract 1017, said lots being known as 4513 and 4504 Atoll Street, Los Angeles, California. Both lots were paid for, hut they did not have additional funds for building purposes. Mr. Austin was actively engaged as a contractor in the concrete business and as such in installing sidewalks, curbs, foundations and similar structures. Harry E. Jones, Inc., a corporation, was engaged in building and constructing dwelling houses. The defendant C. E. Boag was engaged in purchasing lots, building thereon, and then selling the lots together with the improvements. At about the time mentioned above he was the owner and interested in improving lots 4160, 4166, 4144 and 4148 on Camellia Avenue. With him was associated the defendant Loren B. Curtis, who acted as his superintendent of construction. Whether Mr. Boag or Mr. Curtis, or both of them, engaged directly in the construction business the record does not show. Commencing in the early part of the year 1928, after holding various conversations, Mr. Austin and the two defendants entered into oral agreements hereinafter mentioned. As shown by the uncontradieted evidence, Mr. Austin and the two defendants entered into an agreement to build a bungalow on each lot owned by Mr. Austin. Mr. Boag undertook to negoti
Claiming that the defendants had not accounted to him, Mr. Austin assigned his claim to this plaintiff and she commenced the above-entitled action. In her first amended complaint she pleaded an ordinary action for an accounting and set forth, in part, the transactions enumerated above. However, the plaintiff’s allegations and her proof did not correspond. She alleged that Mr. Austin paid to the defendants $7,750 for the purpose of constructing the bungalows and that he installed for defendants concrete work of the reasonable value of $1962.32. The court found said allegations to be true. The evidence did not directly prove said facts. There was evidence to the effect that as a fiduciary for her assignor Mr. Boag received moneys for the account of the former and also that Mr. Austin installed certain concrete work for Mr.
“IV.
“Said defendants . . . allege that Harry E. Jones, Inc., constructed said bungalows and that the said defendant Harry E. Jones, Inc. received therefor for the account of M. P. Austin the sum of $7,569.01, which constituted the total cost of erecting said bungalows including five per cent of the cost thereof for the remuneration of said Harry E. Jones, Inc., for labor and materials furnished in said construction.
“Said defendants . . . allege that any moneys which may have become due to said M. P. Austin, or plaintiff herein, for any work performed or materials furnished on said bungalows as in the first part of said paragraph V set forth, or upon any other work alleged to have been performed by plaintiff or materials alleged to have been furnished by plaintiff and/or M. P. Austin as set forth in said paragraph V of said first amended complaint have been fully paid and that said M. P. Austin and said plaintiff and each of them have been fully compensated for the same.
a
“VII.
“Said defendants . . . allege that the cost of the construction of said bungalows over and above any work performed thereon or materials furnished thereto by M. P. Austin himself amounted to $7,569.01, which was the sum received by defendant Harry E. Jones, Inc. and that no sum of money whatsoever was received by any of the other defendants herein for said construction. ...”
As to all of the affirmative allegations regarding Harry E. Jones, Inc., it is sufficient to state there was not a particle of
The trial court rendered a judgment in favor of the plaintiff for $1962.32. The defendants contend that the findings are not supported by the evidence. Finding number II is: ‘ ‘ That all the allegations contained in Paragraph IV of plaintiff’s first amended complaint are true.” That paragraph of the complaint contains, among others, an allegation as to the reasonable value of cement work done by M. P. Austin. There is not a particle of evidence in the record showing the reasonable value or the agreed value of said cement work.
The judgment as rendered was made up of two different items. One was $635.76 for cement work done on the two Atoll lots. That work was done and performed. But,
The last statement brings us to the next point. The defendants claim the findings are contradictory. That is so in two material respects. Findings IX and XI are respectively as follows: “IX. That all the affirmative allegations contained in Paragraph IV of defendants’ answer to plaintiff’s first amended complaint are not true; that it is not true as alleged in Paragraph IV of defendants’ answer that the said plaintiff has been fully compensated for all work alleged to be furnished by plaintiff and/or M. P. Austin.
“XI. That all the allegations contained in Paragraph VII of defendants’ answer to plaintiff’s first amended complaint, are not true, and in this respect the court finds that there was due to the plaintiff’s assignor, M. P. Austin, the sum of $1,962.32, for work performed and materials furnished thereto by the said M. P. Austin, plaintiff’s assignor, in the construction of said bungalows.” Each of those findings is, in the nature of a negative pregnant as to ultimate facts material to the action. In Wiles v. Hammer, 66 Cal. App. 538, at page 540 [226 Pac. 651], the court said: “It is apparent from the reading of this finding that it does not negative the allegations of defendant’s answer above referred to, but is in the nature of a negative pregnant and implies the truth of at least some of these allegations without showing which ones, if any, are untrue. A finding in the form of a negative pregnant, attempting to negative an affirmative allegation, implies the truth of the allegation. (Tormey v. Anderson-Cottonwood Irr. Dist., 53 Cal. App. 559 [200 Pac. 814];
Claiming that the action was barred by the statute of limitations the defendants pleaded section 335 and subdivision 1 of section 339 of the Code of Civil Procedure. As to the form of action pleaded by the plaintiff, an action for an accounting, the statute of limitations applicable was section 343 of said code. (West v. Russell, 74 Cal. 544 [16 Pac. 392]; McArthur v. Blaisdell, 159 Cal. 604 [115 Pac. 52].) But plaintiff’s action was filed well within the four-year period. Defendants’ contention that the action was barred may not.be sustained.
The judgment is reversed and the cause is remanded for a new trial. The trial court is directed to allow the parties to amend their pleadings in such respects as they may be advised.
Nourse, P. J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 11, 1939.