173 P. 171 | Cal. Ct. App. | 1918
On the twenty-third day of August, 1910, J. C. Fuller sold and transferred to defendants the personal property and improvements and goodwill of a saloon business theretofore conducted by him on certain premises in San Luis Obispo County. The written contract of sale provided that the purchasers "hereby agree to assume and pay all indebtedness of the said J. C. Fuller contracted in or about the said business." In this action the plaintiff seeks to recover on that contract as one made for its benefit *708 and for the benefit of its assignor as creditors of Fuller on account of indebtedness contracted by him in and about the business described in said contract.
The original complaint by which this action was commenced was filed on February 4, 1913; the case went to trial upon the second amended complaint and the answer thereto. Our further references to the complaint should be understood as meaning the second amended complaint. The first count alleged that on August 23, 1910, Fuller was indebted to plaintiff in the sum of $258.59 upon an open book account for goods, wares, and merchandise sold and delivered by plaintiff to Fuller in the months of May and June, 1910. The second count alleged that on the twenty-third day of August, 1910, Fuller was indebted to H. Jevne Company in the sum of $292.20 upon an open book account for merchandise sold by that company to him in the months of April and June, 1910, which said account was on December 30, 1912, assigned by H. Jevne Company to plaintiff. Judgment was entered in favor of defendant Lutz, defendant Gill having suffered default. Plaintiff appeals from the judgment entered in favor of Lutz.
1. It was found by the court to be true, as alleged by defendant Lutz, that as to each of the causes of action in plaintiff's complaint it was barred by subdivision 1 of section
Appellant relies upon the written contract made by defendants with Fuller, and upon section
In support of his claim that the action is in substance founded only upon the original "open book account" indebtedness said to have been created by Fuller, respondent refers to the case of Roberts v. Fitzallen,
In Daniels v. Johnson,
Discussing the foregoing decisions, appellant accounts for them, and in our opinion correctly accounts for them, by the fact that they involved promises to pay mortgage indebtedness, under a law which defines and limits the mortgagee's right of action; the promise to pay in those cases being, under the statute, not enforceable personally for anything more than the portion of the debt which may remain unpaid after a sale made under decree of foreclosure; the action not being, as in the case at bar, solely upon the promise to pay as a new and independent agreement. We think that the difference between an agreement thus affecting the rights of parties to a foreclosure suit, and a contract enforceable only at law upon a personal agreement made for the benefit of a third person, is very clear. In Washer v. Independent Mining Development Co.,
In the case at bar, it is true that each of the contracts, in its turn, must have been made, before the defendants can be held as bound to pay to the plaintiff. But primarily it is the contract made by the defendants which makes them liable at all. There being no mortgage, the remedy is not complicated by any rule which prevents a direct action at law for the collection of the debt. Our conclusion, therefore, is that if by their agreement with Fuller the defendants agreed to pay the indebtedness of Fuller then owing to the plaintiff and to the plaintiff's assignor for the merchandise which had been sold to Fuller as stated in the complaint, the cause of action of the plaintiff arises directly out of the agreement thus made by the defendants, and this agreement rather than the original indebtedness constitutes the gist of the plaintiff's cause of action. It follows that the action was not barred by the statute of limitations.
2. The trial court found that at the time the defendants entered into the agreement with Fuller for the purchase of his business, they had no knowledge of any indebtedness existing between Fuller and the plaintiff, or between Fuller and the plaintiff's assignor, and that said agreement was not made expressly or at all for the benefit of either the plaintiff or its assignor. The latter part of this finding cannot be sustained unless it is justified by the fact that at the time of making such agreement the defendants had no knowledge of the existence of such indebtedness owing by Fuller. To show that the entire finding is thus justified, respondent cites the case of Wilson v. Shea,
3. The court found "that J. C. Fuller was not indebted either to H. Jevne Company or Sherwood Sherwood in any sum upon an open book account for goods, wares, and merchandise sold and delivered either by H. Jevne Company or by Sherwood Sherwood to said Fuller." In view of our definition of the nature of the plaintiff's cause of action, it is not necessary that the indebtedness owing by Fuller should have been "upon an open book account," if even without such open book account the evidence proves that the indebtedness existed, contracted by Fuller in and about his saloon business, and that it was for goods, wares, and merchandise sold and delivered to Fuller as alleged in the complaint. Proceeding upon this theory of the case, we will now examine the evidence.
Counsel for the respective parties agree that the evidence shows the following facts: With reference to the Sherwood *713 Sherwood account, that in May, 1910, Fuller ordered a bill of goods consisting of liquor, and in the following July another stock of liquors, and made a partial payment on the first order. The plaintiff sent to Fuller itemized statements of account which he never denied, and the sum of $258.59 remained due upon the account from Fuller to the plaintiff. With reference to the other account, the evidence shows that H. Jevne Company sold a general bill of goods to Fuller in April and June, 1910, on open account for $292.20, when Fuller was opening the business described in the complaint, and that the merchandise was used in connection with the said business; that Fuller promised and agreed to pay the Jevne Company for the merchandise, including $9.02 freight, or a total of $292.20, and that the same has not been paid. A sheet of paper, being customer's ledger sheet, was introduced in evidence and testified to be a true statement of the account of H. Jevne Company against Fuller, including all charges for merchandise sold and delivered to Fuller by H. Jevne Company, and the prepaid freight charges. And it was testified that the same was a true statement of the account and original records. A letter was introduced in evidence, dated August 12, 1910, signed by Fuller, addressed to H. Jevne Company, in which he acknowledged the indebtedness and promised to pay the bill on September 1st.
In his argument upon the facts shown, counsel for respondent contends that the plaintiff failed to show in either cause of action an open book account existing between the plaintiff or the plaintiff's assignor and Fuller. He does not contend that an indebtedness did not exist which was contracted in and about the business of Fuller and does not contend that such indebtedness was not paid. The finding of fact made by the court is marked by the same limitations.
If we agreed with respondent that plaintiff's cause of action was upon the original indebtedness, we would also agree that the plaintiff could not prevail without establishing the open book account. This result would be compelled under the rule that a plaintiff must prove the facts material and essential to his cause of action. But since we have held herein that the plaintiff's cause of action is based upon the contract made by the defendants with Fuller, it is sufficient for the plaintiff that it is the owner of an unpaid indebtedness owing by Fuller and coming within the description *714 stated in the contract. The fact that there was an open book account, although alleged in the complaint, was only an evidentiary fact, and was not the only means by which the principal facts might be proved.
The judgment is reversed.
James, J., and Works, J., pro tem., concurred.