Kass v. Sklar

Plaintiff Kass and defendants Sklar have appealed separately from the judgment of the Superior Court, but have presented their appeals under a combined transcript and on combined briefs. There is, therefore, no occasion for separate discussions of the appeals.

The defendants were the owners- of an improved lot and a vacant lot in different sections of Los Angeles. They desired to have the building moved from the one lot to the other and there repaired, altered and improved. They had had various dealings with plaintiff Sidney J. Kass, then engaged primarily in the real estate business, and had confidence in his integrity and ability. They asked said Kass to undertake the supervision of the proposed work. Intervening conversations, if any, are not shown by the evidence, but on October 5, 1922, said Kass presented to defendants a form of agreement between defendants and plaintiff E. C. Wiseman. Defendants declined to execute such contract with Wiseman. Thereupon Wiseman’s name was removed and the name Sidney J. Kass inserted and the agreement was then signed by both defendants and by Sidney J. Kass. Immediately thereafter, and without the knowledge of defendants, said Kass assigned said agreement to Wiseman. Wiseman thereupon commenced the work and carried same to completion. During all of the work defendants thought that Wiseman was merely the foreman of Kass under the contract and they did not know of the assignment until suit was commenced. The contract, after describing the properties, provides: “The party of the second part (Kass) agrees to furnish all necessary plans and details to complete this work; also to act as agent and generally superintend the work and purchase all materials and make all necessary contracts for labor, materials and other supplies pertaining to said construction. Best endeavors are to be used to make purchases at lowest possible price, discounts to be obtained where possible and allowed to parties of the first part. . . . The parties of the first part agree to pay all bills and make all payments and advance necessary funds upon certificates rendered by the party of the second part as the work progresses. All materials are to be contracted for in the names of the parties of the first part. In settlement for

During the progress of the work defendants conferred from time to time with Kass; they paid $700 to Kass, who paid same to Wiseman; they paid Wiseman direct on bills presented $2,645, and they paid materialmen, etc., direct, the sum of $3,035.91, making a total- expenditure by them of $6,380.91. There were left unpaid amounts aggregating $1651.08.

Appellants in their opening brief state: “That during the progress of such removal operations, plaintiff Sidney J. Kass conducted himself as though he still retained the contract and that during the progress of the said work defendants frequently consulted said Kass relative to certain expenditures to be made to said Wiseman, whom the defendants believed to be an employee of said Sidney J. Kass.”

Said Wiseman commenced this action as sole plaintiff, the trial judge decided that Kass was a necessary party to the full disposition of the matter and ordered Kass brought in either as a party plaintiff or defendant. He came in as a plaintiff with Wiseman and amended pleadings were filed accordingly. During the trial and apparently by stipulation the court appointed an expert, who inspected the work and reported to the court, and the court found that tim work had been performed in a good, workmanlike manner and that the prices obtained were fair and reasonable. The court determined that the contract was not assignable, but that since the work had been done and defendants had the benefit thereof they should' be required to pay therefor, hence the court gave judgment in' favor of plaintiff Kass against both defendants for said $1651.08, together with interest from the date of completion, making a total judgment of $2,113.38. The court then adjudged: “That plaintiff Sidney J. Kass holds such judgment in trust for his

The specifications of errors contained in the bill of exceptions have been combined into a lesser number in the points presented in appellants’ opening brief, and we consider the points as stated in said brief to be the matters upon which appellants now rely. These points are: (1) The evidence does not support the judgment in favor of plaintiff Sidney J. Kass against defendants or either of them; (2) The evidence does not support the judgment in favor of B. C. Wiseman and against plaintiff Sidney J. Kass cr against defendants or either of them; (3) The court erred in permitting the amendment of the complaint making Sidney J. Kass a party plaintiff.”

Upon point 1 appellants argue that because Sidney J. Kass assigned the agreement, together with all his right, title and interest therein, to plaintiff B. C. Wiseman without the knowledge or consent of defendants or either of them and further because said Kass testified “that he had no money due or owing to him from defendants or either of them, under or by virtue of the contract, or otherwise, for the reason that he had” assigned said contract and further because Kass had agreed to render personal services and had not rendered any personal services or furnished any materials, under no circumstances could plaintiff Kass be entitled to a judgment against defendants or either of them. Ap

These findings are supported by the evidence, but the real question is whether they (with the other findings of fact) will support the conclusion of law that Kass is entitled to a judgment against defendants.

“The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise, except ...” (Civ. Code, sec. 1457.)

“It is not meant by this section to imply that a third person cannot assume the obligations of a contract between other parties, but only that he cannot relieve a party thereto from his obligations without the consent of the creditor.” (Code commissioner’s note [number 10] under sec. 1457, Civ. Code, Kerr’s 1920 Cyclopedic Codes of California.)

The Supreme Court said in Anderson v. De Urioste, 96 Cal. 404 , 407 [ 31 Pac. 266 ], in reference to this note: “We think this the correct construction of the section, and it was, in effect, so held by this court in Cutting Packing Co. v. Packers Exchange, 86 Cal. 574 [ 21 Am. St. Rep. 63 , 10 L. R. A. 369 , 25 Pac. 52 ].”

“The obligations of an assignor of a contract continue to rest upon him and he will be required to respond to the other party to the contract in the event of a default on the part of the assignee.” (5 Cor. Jur. 977; Anderson v. De Urioste, supra; Brady v. Fowler, 45 Cal. App. 592 , 595 [ 188 Pac. 320 ].)

It is therefore apparent that, ' irrespective of the legality or lack of legality of the assignment, plaintiff Kass

Undoubtedly that part of the contract which called for the purchasing by Kass of materials in the name of defendants is not capable of assignment. But all accounts, if any, contracted by Wiseman in the name of defendants were inspected and paid by defendants prior to the commencement of this action. As to the materials and labor furnished and paid for directly by Wiseman defendants made no objection to same not being directly in their names until in this action and in fact they paid on same all but above-stated balance. Since they have not been injured and have what they expected to get, they cannot now be heard to complain.

We turn next to the second point raised by appellants, to wit, that the evidence does not support the judgment in favor of E. C. Wiseman and against plaintiff Sidney J. Kass or against defendants or either of them.

As regards the defendants it will suffice to say they are not concerned with what happens to the judgment against them and in favor of Kass so long as they have full protection from liability beyond a single payment of said judgment. This protection they have under the judgment as rendered. Likewise, plaintiff Kass has no cause to complain. He has not been out anything and cannot now be called upon for anything further under the contract.

As to the third point, to wit, that the court erred in permitting the amendment of the complaint making Sidney J. Kass a party plaintiff, defendants argue that thereby and by the judgment they have been deprived of a complete

“The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in, and to that end may order amended and supplemental pleadings, ... to be filed ...” (Code Civ. Proc., sec. 389.) . “The court may in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party . . . The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars.” (Code Civ. Proc., see. 473.) “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.” (Code Civ. Proc., sec. 578.)

“The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other ease, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.” (Code Civ. Proc., sec. 580.)

“ It is always in the power of the court to allow an amendment to a complaint so it does not affect the substantial rights of the parties; and, except there is evidence of gross abuse of discretion in the exercise of this power, it is no ground for the reversal of the judgment.” (Polk & Hensley v. Coffin & Swain, 9 Cal. 59 ; Curtis v. Nye & Nissen, 86 Cal. App. 507 [ 261 Pac. 747 ]; Rabe v. Western Union Tel. Co., 198 Cal. 290 [ 244 Pac. 1077 ].) Where two or more persons join as plaintiffs in an action at law, it is not the law that both must recover or none. (Cullen v. Foster, 39 Cal. App. 625 [ 179 Pac. 695 ]; Curtis v. Nye & Nissen, supra.)

Appellants state in their reply brief: “The evidence fully discloses that Kass did not ask to be brought in as a party plaintiff, but was brought in over Ms objection by order of

In the case of Martin v. Howe, 190 Cal. 187 , 193 [ 211 Pac. 453 , 456], the Supreme Court again declared, as said court had declared theretofore in Grain v. Aldrich, 38 Cal. 514 [ 99 Am. Dec. 423 ]: “Legal and equitable relief are administered in the same forum, and according to the same general plan. A party cannot be sent out of court, merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can be sent out of court only when, upon his facts, he is entitled to no relief, either at law or in equity.”

When a judgment, if satisfied, will protect defendant from further suit, annoyance or loss and the action has afforded defendant the opportunity to assert in that action all the defenses, causes of action on cross-complaint and counterclaims available to him as against the cause of' action and time has been allowed for preparation for trial, defendant’s objection to the bringing in of an additional party plaintiff, of itself, will not justify a reversal of that judgment.

We deem it unnecessary to determine herein whether or not the coming in of Kass as a party plaintiff was in law an error because we cannot see that defendants have in any manner been prejudiced thereby. No judgment shall be set aside for any error as to any matter of pleading or of procedure, unless, after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Sec. 4½, art. VI, Const.) We have made such examination and have found no miscarriage of justice.

The judgment is affirmed as to both appeals.

Houser, J., concurred.

I dissent. If it be true, as seems to be conceded, that Wiseman had no cause of action

If Wiseman had any right of action against Kass, it was a right of action at law for money due on a contract of employment. He had no lien of any kind on the indebtedness of the defendants to Kass. Prom every point of view, the decision of the trial court is clearly against law.

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 31, 1930, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 5, 1930.