de l'Eau v. Williams

YORK, J. Appeal from a judgment recovered by plaintiff against defendant Russell L. Williams for the sum of $5,000 with interest thereon from June 10, 1923, and also from that part of the judgment wherein it is ordered that •defendant take nothing against said plaintiff on his cross-complaint on file herein. It appears that respondent and his wife were the owners of a certain oil lease called the Severy lease, and that on or about June 10, 1923, they entered into an agreement with appellant Russell L. Williams, whereby said respondent and wife transferred and assigned said lease to appellant in consideration of payment to them by him of the sum of $5,000, or the value thereof in stock of the Russell Oil Company as soon as that company was organized. Because of failure of appellant to carry out the terms of the agreement, plaintiff brought action and recovered judgment, as above stated. The action was commenced by complaint filed December 26, 1924. The amendment adding the third count to the complaint was filed April 18, 1929. The appellant makes the following assignments of error: 1. The court abused its discretion in refusing to allow defendant to amend his answer and show the fraud of plaintiff in procuring the contract on which he was suing. 2. The evidence does not support the findings. 3. The findings do not support the judgment. 4. The finding that the amendment to the complaint is not barred by the statute of limitations is against the law. During the course of the trial, the attorney for appellant made the statement: “We have just been informed this morning that, the agreement upon which the plaintiff is now suing for a commission of $5,000 was obtained from Mr. Severy; that he collected a commission from the other side; he collected commissions from both [118] sides without informing the defendant. I am going to ask leave to file an amended answer and an amended cross-complaint to set up these facts, to set up the fraud of the plaintiff in that transaction, and that we did not know it until this morning; and we will no doubt have Mr. Severy here to testify to the facts.” The motion when made was denied by the court. No such pleading was actually presented to the court nor was the exact wording of such proposed pleading stated to the court. As a matter of fact, the action here was commenced on December 26, 1924, and it was not until April 16, 1930, during the trial of the action, that the above statement was made, claiming that appellant had collected commissions from both sides and that it was fraudulent. The basis of the fraudulent acts complained of by appellant was a purported agency relationship which appellant claims existed between him and respondent. There was no mention made of such relationship in any of the pleadings in this case, and no- finding was made to that effect. We think that in the absence of an allegation in the pleadings of the existence of such relationship between the parties, taken together with the lapse of over five years from the date of commencement of the action to the trial, and the insufficiency of the statement made concerning defendant’s failure to make an earlier discovery of the facts relating to the proposed new defense, that there was no abuse of discretion on the part of the trial court in refusing permission to appellant to file an amended answer. “But aside from this, no error can be predicated upon this ruling for the reason that the defendant never prepared or tendered for filing any proposed amendment.” (Neher v. Kauffman, 197 Cal. 674, 686 [242 Pac. 713, 718].) The findings are amply supported by the evidence and the findings support the judgment of the trial court. Appellant’s fourth point, to the effect that the court erred in his finding that the amendment to the complaint is not barred by subdivision 1, section 337, Code of Civil Procedure, is without merit. The first cause of action was for the sum of $5,000 and the third cause of. action, set up by the amended complaint, goes into detail as to the transaction entered into by the parties, and prays for the sum of $5,000. ' The first cause of action and the third [119] cause of action are based upon the same obligation, and the amended complaint is not barred by the statute of limitations. The judgment appealed from is affirmed. Conrey, P. J., concurred.