209 P. 592 | Cal. Ct. App. | 1922
The plaintiff commenced an action against the defendants based on a common count for money paid. In its complaint it sued for $705.06. It was awarded a judgment for $404.40. Being dissatisfied with the amount of its judgment the plaintiff has appealed and has brought up the judgment-roll and a bill of exceptions.
The controversy arose out of the expenditure of moneys expended in certain litigation, the results of which were of interest to all of the parties concerned. The plaintiff conducted the litigation from the beginning to the end. During a part of the time the predecessors in interest of the defendant J. W. Goodwin were parties to the litigation and shared in the expenses. Later, when the defendant J. W. Goodwin became the owner of certain of the properties he was substituted for his predecessor and he remained a party to the litigation until the same was terminated. The liability of the defendant J. W. Goodwin is claimed to rest on two different theories, one that he was so liable by reason of an alleged covenant running with the land and the other theory is that he was liable on an implied contract. In view of the conclusion which we have reached on the first theory, it will not be necessary for us to consider the second theory. A part of the expenses was incurred when J. W. Goodwin and Luther J. Holton owned the land as tenants in common. On February 5, 1916, those two men entered into partition deeds. As from that date on the defendant Goodwin claims that the expenses should be divided and that Goodwin should not be charged more than one-half thereof, whereas the plaintiff contends that under the provisions of section
By the partitioning had, Holton took 1,050 acres and Goodwin took 8,070 acres — Holton took 11.51 per cent and Goodwin took 88.48 per cent. Each became liable thereafter for a share of the obligations in the same proportion, viz., Holton for $103.30 and Goodwin for $725.51. It follows that the judgment in favor of the plaintiff should have been for a sum equal to at least $705.06, the amount which the plaintiff claimed in its complaint; but the amount awarded by the trial court was only $404.40.
It follows that the judgment should be reversed, and it is so ordered.
Nourse, J., and Langdon, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 13, 1922.
All the Justices present concurred.
Richards, J., pro tem., was acting. *757