Elias v. Erwin

Plaintiff brought this action against Paul E. Erwin, his wife, Helen Erwin, Worcester Thomas, and his wife, Katherine Thomas, for the recovery of the sum of $4,500 allegedly deposited with the defendants to be used in the purchase of cattle for plaintiff which were to be sold for his account. It was alleged that defendants orally agreed to keep the sum of $4,500 contributed by plaintiff in a separate account, to earmark cattle purchased therewith as the property of plaintiff and to keep intact in money or cattle the amount of plaintiff’s contribution plus 3 per cent of the sales price of cattle sold, plus also 50 per cent of the profits from the use of the money advanced by plaintiff; that defendants did not place plaintiff’s money in a special account, did not earmark cattle purchased therewith; that they purchased cattle with the money and sold them; that plaintiff demanded payment of $4,500 plus $158.50, but that defendants had paid only the sum of $128.50. A second cause of action accused Helen Erwin of fraud in obtaining the money and a third cause of action sought recovery of $4,635 as for money had and received. The action was tried to the court upon the complaint and the answers of the defendants.

There was ample evidence to support the finding that plaintiff contributed the money for the use of Erwin and Thomas. Admittedly plaintiff did not deal directly with Erwin. There was evidence that the arrangement was made through Mr. Thomas, Mrs. Thomas and Mrs. Erwin. Appellant contends there was no evidence that Mrs. Thomas and Mrs. Erwin were acting on behalf of the joint adventurers. We find the evidence to be sufficient to support the court’s finding. Plaintiff testified that both Mrs. Thomas and Mrs. Erwin promised that his money would be placed in a special account

There was no agreement respecting the right of plaintiff to withdraw his money. Such right as he had would therefore derive from the legal relationship of the parties. Upon the facts pleaded and found the relationship of joint adventurers was created. Plaintiff advanced money, Thomas and Erwin contributed services and the profits of the enterprise were to be divided. These were the essentials of a joint venture (Nelson v. Abraham, 29 Cal.2d 745 , 749 [ 177 P.2d 931 ]); no time was specified for the duration of the enterprise. Ordinarily, in the absence of express agreement, the joint venture would continue for such time as the parties had in mind for the accomplishment of its purposes. (Iron etc. Co. v. American Milling etc. Co., 115 Cal.App. 238 , 248 [ 1 P.2d 1008 ]; 48 C.J.S. 820.) While it would seem probable that the parties intended that the sum contributed by plaintiff would be used in a revolving fund, there was no evidence and no finding to that effect. Plaintiff complied with his agreement to the extent of allowing his money to be used for the purchase of cattle. It was not contended by the defendants that he breached his agreement by not allowing it to be used for additional purchases. However, even in the absence of an agreement that plaintiff might withdraw his funds after they had been used once, other facts found by the court justified his withdrawing them. It was of the essence of the agreement that plaintiff’s funds were to be kept in a separate account and not commingled with other funds of the defendants; also that all cattle were to be purchased and earmarked for plaintiff’s account and that at all times there would be on hand either cash or cattle equivalent to the amount of plaintiff’s contribution plus his share of any accumulated profits. Plaintiff would thus have security; his funds would be kept segregated and the cattle purchased for

There is one additional point to be considered. Prior to the trial it was shown by affidavit that the attorneys who were representing plaintiff were at the same time representing Worcester Thomas and Katherine Thomas in an action in the municipal court against Paul E. Erwin and Helen Erwin involving the operation of the cattle sales yard in Riverdale. A motion was made to vacate the setting of the case for the reason that defendants Thomas were indispensable parties and had not appeared in the action. Before the motion was heard Thomas and wife filed an answer in propria persona which was prepared by one of plaintiff’s attorneys and verified before the other. When the case came on for trial defendants Erwin moved to dismiss the action upon the ground of collusion between plaintiff and defendants Worcester and Katherine Thomas. The basis of this claim was that plaintiff’s attorneys, being also attorneys for Thomas and wife in another action, could, through dominating the course of the trial as between plaintiff and defendants Thomas, work some sort of fraud upon Erwin and wife. One of plaintiff’s attorneys, while conceding that he had acted in the municipal court case for Mr, and Mrs. Thomas, informed the court that plaintiff

The briefs of appellant, in major part, are devoted to an argument that he was deprived of a fair trial by means of a collusive agreement between plaintiff and Mr. and Mrs. Thomas to fasten liability upon appellant and his wife. We are unable to follow appellant’s devious argument. It is an earnest but futile attempt to fit a square peg into a round hole. In the first place only Mr. and Mrs. Thomas could object to the attorneys’ representation of plaintiff. They made no objection; plaintiff was satisfied. It was to plaintiff’s interest to fasten liability upon Mr. and Mrs. Erwin; it was to the interest of Mr. and Mrs. Thomas that Mr. Erwin at least be held liable to plaintiff. When the interests of litigants are identical they usually join in their efforts in the course of the litigation to accomplish a common purpose. Such cooperation and common effort is not collusion, which implies “a playing into another’s hands for fraud or deceit.” The record is devoid of anything that would justify even a suspicion that the conduct of plaintiff or defendants Thomas or their attorneys was in any respect improper or subject to criticism. The authorities on the point cited and discussed by appellant are wholly irrelevant.

The court first found that Mrs. Erwin was guilty of fraud and upon that finding rendered judgment against her for a portion of the sum involved. Although the amended complaint in the second cause of action accused Mrs. Erwin of fraud the court unaccountably made no finding upon this cause of action. We assume that the court reversed its judgment upon this issue since Mrs. Erwin was not held liable. Although no finding was made one way or the other the result is that Mrs. Erwin was acquitted of the charge of fraud.

The judgment rendered upon the new findings superseded the original judgment. The appeal from the original judgment is dismissed. The judgment entered May 22, 1953, is affirmed.

Wood (Parker), J., and Vallée, J., concurred.