214 P. 855 | Cal. | 1923
Plaintiff commenced this action to recover the sum of $550.30 from defendant as money had and received, alleging that defendant was employed by plaintiff to superintend a ranch which plaintiff controlled and was authorized to sell certain goods belonging to plaintiff; that he sold the goods and received the sum of $1,400.30 therefor; that he had turned over to plaintiff but $850 of that amount and was therefore indebted to plaintiff in the sum prayed. Defendant denied all the allegations of the complaint and filed a cross-complaint, in which it was alleged that he was employed by plaintiff as superintendent of its ranch from December 10, 1917, to May 12, 1920; that for his services plaintiff promised to pay him at the rate of $50 per month from December 10, 1917, to October 31, 1918; of $100 per month from November 1, 1918, to February 29, 1920, and of $150 per month from March 1, 1920, to May 12, 1920; that the total salary promised was $2,493.33; that there is owing him for salary from November 21, 1919, to May 12, 1920, the sum of $693.33; that defendant used his automobile in connection with plaintiff's business at plaintiff's request, for which plaintiff agreed to pay a reasonable sum; that $276, or $15 per month for eighteen and two-fifths months, is a reasonable amount for such use, wherefore defendant prayed judgment for the sums of $693.33 and $276.
Answering the cross-complaint, plaintiff denied that defendant was employed by it from December 10, 1917, to May 12, 1920, and alleged that he entered into a contract of employment with the Llano Del Rio Company of Nevada, which contract was assigned to plaintiff, with defendant's consent; that defendant was employed by plaintiff under the contract from February 17, 1919, to April 7, 1920, and not for any other period; denied that it promised to pay defendant for his services the sum of $2,493.33, or any other sum in excess of $675, the amount provided by the contract, which, it was alleged, has been paid to him, and denied all the allegations with respect to the use of the automobile. *754
Upon the trial the court made and filed findings of fact and conclusions of law, and pursuant thereto entered judgment that defendant recover from plaintiff the sum of $505.26 and his costs. From that judgment plaintiff takes this appeal upon the judgment-roll alone.
The first contention of appellant is that the judgment is based upon a cause of action not within the allegations of the pleadings and therefore not sustained by them. In support of this position are cited Chetwood v. California National Bank,
The court found that there was a balance due, owing, and unpaid to respondent by appellant upon the salary of the defendant "under his employment by the plaintiff and its predecessors referred to, after all charges and debits, which the plaintiff and its predecessors had against the defendant, had been made against him," the sum of $505.26. It is claimed this finding is based upon a cause of action which respondent might have against appellant for salary under an employment by appellant and its predecessors, whereas respondent in his cross-complaint alleged only that he was employed by the appellant, saying nothing about its predecessors, and that there was a sum due him from appellant from November 21, 1919, to May 12, 1920. Appellant insists now that it could not be called upon to prove all charges and debits which appellant or its predecessors had against respondent; that the finding cannot be construed as a finding of a balance due and unpaid under an employment by appellant alone, and that no basis exists upon which to infer that the balance due under the three employments was the same balance as might be due under only one of them.
[1] In its answer to the cross-complaint appellant set up as new matter that respondent was employed by it under the contract with its predecessor, of which contract appellant was the assignee. This allegation is deemed to have been *755
denied by respondent (Colton L. W. Co. v. Raynor,
[2] In the case at bar the court found, against respondent's allegation, that he had not been employed from 1917 to 1920 by appellant, but, as alleged in the answer to the cross-complaint, that his employment was under the contract set forth — first with appellant's predecessor and subsequently with appellant, following the assignment of the contract. It was further found that appellant assumed all the obligations and liabilities under the contract. Under such circumstances the fact that there had been several employers instead of one is immaterial, inasmuch as appellant occupied the same position as its predecessors. Also, all the rights and obligations which had arisen under the contract at any time would have to be considered to determine the balance due at the time of its termination. There is no contention that the finding in question is not based on proper evidence and it must be assumed the parties presented to the court all their respective claims under the contract. It may be remarked that as respondent alleged he had been fully paid up to November 21, 1919, at which time he was admittedly working for appellant, the charges and debits prior to that time could only have run in favor of appellant and, according to the finding, charges and debits were made in favor of appellant only.
The court further found that the contract between respondent and appellant, to which appellant became a party by assignment, was superseded on November 1, 1918, by a new agreement, under which respondent was to receive $100 per month, commencing November 1, 1918. Thereupon, considering the charges and debits in favor of appellant under the old contract and those under the new one, the court found that there was due and owing to respondent the sum of $505.26. This finding is entirely consistent with the issues presented by appellant in its answer to the cross-complaint. *756
[3] Appellant's second point is that the judgment is not sustained by the findings. The court found there "was a balance on May 12, 1920, due, owing, and unpaid to the defendant by the plaintiff," the sum of $505.26. This finding, it is claimed, does not show appellant had not paid the money due on that day or that there now exists or has existed subsequent to May 12, 1920, any obligation on appellant's part to pay respondent. It is pointed out that in its answer to the cross-complaint filed June 4, 1920, appellant denied it owed respondent anything.Majors v. Cowell,
However, we are of the opinion the finding that the amount appellant owed to respondent was unpaid on May 12, 1920, the day the action was commenced, is sufficient to support the judgment in the case at bar and distinguishes it fromJacuzzi v. Jacuzzi, supra. All the facts upon which the indebtedness of appellant rested occurred before May 12, 1920. Whether or not there was a sum owing and unpaid was a conclusion to be drawn from the facts as they existed at that time, regardless of when appellant denied it was indebted. In the pleadings filed after the commencement of the action there were no events alleged to have occurred after that date which would have changed the situation. Therefore, in the absence of a subsequent satisfaction or mitigation, such as payment, a finding that a balance was due, owing, and unpaid on May 12, 1920, would be equivalent to a finding that it was due, owing, and unpaid at the time judgment was rendered. There was no allegation that the amount had been subsequently paid and in order to hold that it was paid after May 12, 1920, it would be necessary *757
to assume that the issue of payment after that time had been raised; that evidence had been offered to that effect, and that the court had failed to make a finding thereon. Such an assumption will not be indulged, in view of the rule laid down in Himmelman v. Henry,
The judgment is affirmed.
Kerrigan, J., Seawell, J., Myers, J., Waste, J., Lennon, J., and Wilbur, C. J., concurred.
