Opinion
Civ. No. 3229.
January 21, 1921.
APPEAL from a judgment of the Superior Court of Los Angeles County. Dana R. Weller, Judge. Affirmed.
The facts are stated in the opinion of the court.
William H. Fuller and Earl L. Wisdom for Appellant.
Bordwell Mathews for Respondent.
This is an action for the recovery of commissions for certain sales of oil made by Graham-Loftus Oil Company to the appellant. The appeal is from a judgment for the plaintiff.
The respondent's cause of action is based upon a written contract between him and the appellant, reciting that he had rendered services in the obtaining of a contract between appellant and Graham-Loftus Oil Company; the appellant, in consideration of such services, promising to pay a commission of a certain amount for each barrel of oil delivered under the contract between the two companies.
[1] At the commencement of the trial the appellant objected to the reception of evidence on the ground that the complaint fails to state a cause of action. The objection was overruled, and it is claimed that the ruling was erroneous. This point is based upon the assertion, made in appellant's brief, that plaintiff's pleading contains no allegation that any oil was ever delivered to appellant "under the contract" between the two companies. The appellant evidently means to contend, strange as it may seem, that such an allegation, in terms, is necessary to the complete statement of a cause of action in a case like this. Such a proposition cannot be maintained. It requires no citation of authority to support the assertion that such an allegation would be but the statement of a conclusion, and that it would be stricken on motion. The complaint set forth the contract between the appellant and the other company, in full, and stated that a certain number of barrels of oil was delivered by the Graham-Loftus concern. It was further alleged that statements of the amount delivered, made up pursuant to a scheme provided in the contract, were rendered to appellant and were retained by it. We are at a loss to perceive a better method of pleading plaintiff's cause of action without a violation of the salutary rule against the averment of conclusions. The complaint was, of course, sufficient. [2] At the trial the plaintiff rested without the introduction of evidence, upon the theory that the state of the pleadings warranted that course, and the court determined that the burden of proof was upon the defendant under the allegations of its answer and counterclaim. A motion for a nonsuit was then presented and denied. Appellant assigns this ruling as error, upon the utterly untenable ground that the answer raised an issue by means of a denial contained in it "that there is now due or owing to plaintiff by virtue of or under" the contract sued on "the sum" for which judgment was asked in the complaint, "or that there is due or owing from said defendant to plaintiff any sum whatsoever." The complaint alleged the facts showing an indebtedness due the respondent from the appellant, and, further, that the amount of the indebtedness was due, owing, and unpaid. A denial of this latter allegation, without a traverse of the averments showing the indebtedness, raised no issue. ( Lightner v. Menzel, 35 Cal. 452. ) The motion for a nonsuit was properly denied.
[3] The remaining contention of the appellant is that the trial court erred in sustaining an objection to an offer of evidence intended to prove allegations of the answer and counterclaim to the effect that the appellant was induced to enter into the agreement with the Graham-Loftus Oil Company through fraudulent misrepresentation to which the respondent was a party. The facts constituting the alleged fraud are set forth in appellant's pleading with great particularity. Reduced to a brief compass they amount to a charge that it was represented to appellant, before the consummation of the agreement between the two companies, that the oil proposed to be delivered to appellant did not have a foreign content in excess of a certain stated percentage of its volume. The difficulty is, however, that when the contract was finally executed it contained several provisions showing that appellant bound itself to take oil from the other company without limitation or diminution because of the presence in it of a foreign content of any percentage whatever. We need not refer to these parts of the contract. They are plainly apparent from a reading of it, and, moreover, they are specifically mentioned and pointed out in the brief of respondent; and the appellant does not, in its reply brief, attempt to harmonize their presence in the contract with its theory of fraudulent misrepresentation in its procurement. The point made by appellant is totally without merit, and its pleading failed to state a defense or counterclaim.
The judgment is affirmed.
Finlayson, P. J., and Craig, J., concurred.