120 Cal. 581 | Cal. | 1898
This action was commenced on March 18, 1880, in the superior court .of the city and county of San Eranpisco, to secure an accounting and winding up of the affairs of a
Summons was issued and served on theday the complaint was filed. Within a few days thereafter the parties came together and entered into a written agreement for the settlement and adjustment of their difficulties, whereby it was mutually stipulated that to avoid litigation and publicity in regard to their differences the same should be submitted to one Thomas W. Scott, as> arbitrator, with full power to arbitrate and finally adjust all claims, demands, and matters of controversy of every^siature existing between them; that said Scott should mak(e his award within two days thereafter, and that the defendant Onderdonk should pay the amount of the award within twenty-f^iur hours after notice thereof, and that thereupon this action should be dismissed. J
Scott accordingly proceeded and made his award as such ar7 bitrator, finding that there was due the plaintiff the ipm of thirty-two thousand dollars. This amount was at once paid by • Onderdonk, and Truett thereupon executed to him a full and complete release of all matters of difference between them^ and thereafter on March 26, 1880, caused to be filed in the actioik by his attorney a direction that the action be dismissed. ■
Mo judgment of dismissal, however, was entered upon said di-, rection, and there the case slumbered until Movember, 1894—$ period of more than fourteen years: In the latter month the plaintiff appeared iu said court through other counsel, and gave yotice.of a motion .to have the cause set for trial,'and to have a
Touching the manner and circumstances of his discovery of the defendant’s alleged fraud, the affidavit states:
“In the spring of 1894 there was published in the daily papers
The affidavit further stated the fact that no judgment of dismissal had ever been entered in the action, and that upon discovery of the said fraud plaintiff had retracted and withdrawn his consent to the dismissal of said action; and the affidavit closes with the prayer that an order be entered authorizing the withdrawal and retraction of said dismissal.
The affidavit of Scott states that after the commencement of the action he undertook the settlement and adjustment of the controversy between the plaintiff and Onderdonk; that in the performance of said undertaking affiant had a number of interviews “with said defendant or his agent, and negotiated with him on behalf of said plaintiff for an adjustment of their accounts and a settlement of their differences involved in said action; that in said negotiation said defendant gave affiant the items constituting the assets and liabilities of said partnership between plaintiff and defendant for the purpose of forming the basis of settlement between them; that in discussing the terms of such settlement, and arriving at a conclusion, and in making of such settlement, the defendant, Andrew Onderdonk, stated and declared to affiant that he and plaintiff had obtained a contract to build a section of the Canadian Pacific Eailway, but that it became necessary to relinquish the same to other parties, inasmuch as defendant could not otherwise procure the necessary financial assistance to carry out said contract”; that Onderdonk further represented to affiant that he had retained no interest in said contract, and that the only benefit he would receive therefrom was a salary which he was to get as engineer in the construction
.The affidavit of Martin is simply to the effect that affiant had heard read the affidavit of plaintiff Truett, and “that in so far as the same refers to him (affiant) and to things and matters, learned through this affiant, the same is true.”
With these affidavits plaintiff also .filed a paper formally withdrawing and retracting his order for dismissal filed March 26, 1880.
At the hearing of plaintiff’s motion in February, 1895, counsel specially appeared for the defendant for the purpose' of opposing the same, and to urge a counter-motion on behalf of defendant that a judgment of dismissal be entered as directed by plaintiff in his authorization filed March 26, 1880. The motions-were heard together, and the facts shown on the hearing were as above stated. Thereafter, on February 27, 1895, the court made an order denying plaintiff’s motion and granting that of defendant; and judgment was thereupon entered dismissing the action. Plaintiff appeals from said order and from the judgment.
, Certain objections are urged by respondent which would pre-t elude an inquiry into the merits of the real question presented by the appeal, but we deem them untenable. The motion, although technically to set the case for trial, fairly involved the further relief asked by plaintiff’s affidavit, that he be relieved from the obligation of his consent to a dismissal. FTor had the court lost jurisdiction to entertain the motion. The action was still pending; it had not been dismissed, for the reason that no judgment of dismissal had been entered as required by the statute. (Acock v. Halsey, 90 Cal. 215; Brady v. Times-Mirror Co., 106 Cal. 56.) Flor can there be any question of the power of the court, if the circumstances justified it, to relieve plaintiff from the obligation of his" order of dismissal. It was in its nature but a stipulation, and it is always competent for the court to control such conventions in the interest of justice where for any reason they have been improvidently entered- into. (Robinson v. Exempl Fire Co., 103 Cal. 1; 42 Am. St. Rep. 93.)
In the first place, it may be seriously questioned if the facts tend sufficiently to establish any fraudulent act on the part of the defendant. There are some general statements in the affidavits of plaintiff, which, standing alone, would have that tendency, but it appears that those statements are not made from any positive knowledge, but from information derived from others; and, when the source of such information is given, it is seen to rest solely upon some vague, general, secondhand statements of third parties, one of whom plaintiff cannot name, and two of- whom he did not himself see; and with no attempt made to state the source or character of the knowledge upon which his informants based their alleged statements of facts. For all that appears the entire fabric of plaintiff’s information may consist of the idlest and most unfounded rumors. The affidavit of Martin does not state that he knows anything of the facts. All that his affidavit may be taken to substantiate is that he told plaintiff certain things himself, and interviewed Mc-Laren and McMullen on the subject, who made certain statements to the affiant; but as to the truth or authenticity of his own statements, or those of McLaren and McMullen, he does not pretend to state. The affidavit of Scott states the only tangible fact in the whole showing—that defendant did represent that the Canadian Eailroad contract had been disposed of without profit to the partnership. But there is nothing which competently negatives the truth of this statement or which necessáriiy shows that, if defendant did thereafter in fact make
But, in the next place, assuming that the evidence was sufficient to make a prima facie case of fraud, there is an absolute want of any showing of diligence in the plaintiff in moving for relief in the premises. Plaintiff was aware, at the time of the settlement, of the existence of the railroad contract, and that it had been taken in behalf of the firm; he so states in his affidavit. The parties in that settlement were dealing at arm’s length—in the face of litigation—and yet the. plaintiff took no measures whatsoever to verify the statements of defendant as to the actual facts with reference to this contract. He rested supinely and in blind confidence, so far as appears, upon those representations, notwithstanding the conduct of the defendant had been such, as alleged in the complaint, to arouse his just suspicions and put him upon inquiry as to the defendant’s good faith. There is nothing shown to indicate that defendant in any way prevented an independent inquiry by plaintiff into the facts as to the status of that contract. It is to be presumed plaintiff knew because he does not negative such presumption, the source or channel through which the contract had been secured, and there is nothing to show that the slightest inquiry at that source would not have disclosed whether defendant’s representations were true or false. It does not even appear that plaintiff examined the books of the partnership to ascertain what there appeared as to this contract; they might have shown the truth or falsity of defendant’s claim. It is not alleged that he was denied access to the books in the making of the settlement; and yet there is nothing to show what appeared therefrom. There is no claim that they had been in any way falsified or tampered with for the purpose of covering up the true status as to this contract.
Under the circumstances, we think the court below was fully justified in denying plaintiff the relief sought, and that plaintiff got all he could reasonably ask in having the judgment entered without prejudice to another action.
The order and judgment are affirmed.
Harrison, J., Garoutte, J., McFarland, J., and Henshaw, J., concurred.
Behearing denied.