Opinion
Hearing Granted July 12, 1940.
Appeal from Superior Court, Los Angeles County; Joseph W. Vickers, Judge.
Action by Morris Orloff against the Metropolitan Trust Company of California and others, to recover a money judgment and for declaratory relief. From a judgment predicated upon the sustaining of general demurrers to plaintiff’s third amended complaint without leave to amend, plaintiff appeals.
Affirmed. COUNSEL
Orloff & Katz, of Los Angeles (Abraham Gorenfeld, of Los Angeles, of counsel), for appellant.
Burr & Smith, of Los Angeles, for respondents Metropolitan Trust Co. of California and P.T. Libby.
Sydney Tannen, of Los Angeles, for respondent Sam Weiss.
Edward Flam, of Los Angeles, in pro. per., for respondent Edward Flam.
OPINION
McCOMB, Justice.
From a judgment predicated upon the sustaining of general demurrers to plaintiff’s third amended complaint without leave to amend in an action to recover a money judgment and for declaratory relief, plaintiff appeals.
The complaint as amended contained five alleged causes of action. The first three alleged causes of action are predicated on the same facts, which are hereinafter stated. The fourth cause of action is a common count for money had and received predicated on the facts alleged in the first three causes of action, and the fifth cause of action purports to seek declaratory relief predicated on the facts alleged in the first three causes of action. It therefore becomes material for us to consider whether a cause of action is stated in any one of the first three counts of the complaint. These counts being the same in substance, contain the following material allegations:
I. In 1935 defendant Garrison entered into an agreement with defendants Grossfeld, Margulis, and Rio Brewing Company, Inc., to purchase from them all the capital stock of the Rio Brewing Company, Inc.
II. Metropolitan Trust Company of California was appointed escrow holder to receive and disburse the money and instruments required to consummate the transaction.
The aforementioned escrow instructions signed by defendants Garrison, Grossfeld, and Rio Brewing Company, Inc. (it is to be noted that the escrow instructions were not signed by the Metropolitan Trust Company), provided that certain creditors of the Rio Brewing Company were to be paid from the proceeds of money to be deposited in the escrow, one of the creditors thus designated being Leo Schinagel, who was to be paid $2,500. This escrow was numbered D319.
III. Defendant Libby was the escrow officer in charge of escrow No. D319.
IV. In April, 1936, Leo Schinagel transferred and assigned all of his rights to any money due him from the aforementioned escrow to plaintiff. He also gave notice to defendant Metropolitan Trust Company of the assignment and directed it to pay any money due him to plaintiff.
V. Defendant Garrison paid a total of $10,403.75 into the escrow, approximately one-half of which sum was paid into the escrow prior to Mr. Schinagel’s assignment to plaintiff and the balance thereafter. This sum was sufficient to pay all creditors in the order of their preference, as set forth in the escrow instructions up to and including the creditors in the class where plaintiff’s assignor was listed.
VI. In March of 1937 defendant Garrison gave defendant Grace an option to purchase for $17,000 all of the stock of defendant Rio Brewing Company, Inc., and on the same day defendant Rio Brewing Company, Inc., gave to defendant Grace an option to purchase for $48,000 all of the assets of said corporation. Mr. Grace exercised both of the options March 10, 1937.
VII. March 25, 1937, escrow No. D319 was cancelled on the written instructions of defendants Garrison, Margulis, and Grossfeld, and on the same day a new escrow number 5485G was created with Metropolitan Trust Company of California as escrow holder, the instructions being executed by defendants Garrison, Margulis, and Grossfeld as sellers and defendant Grace as buyer. The purpose of this escrow was to carry into effect the option agreement entered into by the parties March 2, 1937. This new escrow provided for the payment of all creditors listed in the previous escrow No. D319 who had not theretofore been paid, with the exception of plaintiff, who was omitted from the list of creditors to be paid out of escrow No. 5485G. In his place was listed defendant Weiss.
VIII. Defendant Grace paid into the escrow $17,000 which defendant Metropolitan Trust Company of California, after paying the creditors listed in the escrow instructions, distributed as follows:
$8,172 to defendant Grossfeld.
3,923 to defendant Margulis.
1,305 to defendant Weiss.
IX. A portion of the money received by defendants Grossfeld and Margulis and all of the money received by defendant Weiss was paid to defendant Schinagel.
X. The substitution of defendant Weiss for plaintiff as a creditor in escrow No. 5485G was done by defendants Grossfeld, Margulis, Weiss, Flam, defendant Metropolitan Trust Company of California, and defendant Libby through a corrupt agreement to defeat the assignment by defendant Schinagel to plaintiff.
XI. Defendant Flam, with full knowledge of the assignment to plaintiff, aided, assisted, and abetted the consummation of escrow No. 5485G.
To the complaint defendants Metropolitan Trust Company of California, Libby, Weiss, and Flam interposed general demurrers, which were sustained without leave to amend.
This is the sole question presented for our determination: Were the general demurrers of the defendants just named to the complaint as amended properly sustained on the ground that the pleading did not state facts sufficient to constitute a cause of action.
This question must be answered in the affirmative.
(1) The pleading did not allege a cause of action for civil conspiracy, since the complaint as amended contained nothing more than bare allegations that defendants entered into a conspiracy to defraud plaintiff and committed certain acts in furtherance thereof, which acts were not wrongful. The law is established in California that such allegations are insufficient to state a cause of action for civil conspiracy. The rule is that a conspiracy is not actionable unless the combination results in the perpetration of an unlawful act or some injurious act by unlawful means. The bare allegation that defendants entered into a conspiracy to defraud plaintiff and that various acts were done for the purpose of defrauding the plaintiff is not a sufficient averment of fraud unless connected with a showing of facts which, if true, would support the charge that they were wrongful. Kinney v. Postal Telegraph-Cable Co., 123 Cal.App. 70, 75, 10 P.2d 1043; Rapaport v. Forer, 20 Cal.App.2d 271, 278, 66 P.2d 1242; Moropoulos v. C.H. & O.B. Fuller Co., 186 Cal. 679, 683, 200 P. 601; 5 Cal.Jur. [1922], sec. 29, p. 529.
(2) The law in California is that a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it. Sec. 1559, Civ.Code; Ericksen v. Rhee, 181 Cal. 562, 565, 185 P. 847.
In the instant case it appears upon the face of the pleading that the parties to escrow No. D319 had rescinded it prior to the time plaintiff attempted to enforce any rights thereunder. Hence, applying the rule above stated, the complaint does not state a cause of action in favor of plaintiff for breach of a third party beneficiary contract.
(3) There is no allegation in the complaint showing compliance with or performance of the conditions of the escrow instructions, which were a prerequisite to the disbursement of any money received into escrow No. D319. There is thus a failure to allege an essential fact for a cause of action upon the theory that defendant Metropolitan Trust Company and Libby received money in trust for plaintiff as a creditor beneficiary.
From the foregoing it is evident that no one of the first three counts of the complaint stated a cause of action on any theory. This being true, the general demurrer was properly sustained to the fourth count, which was a common count for money had and received. It is the established law of California that if plaintiff is not entitled to recover under a count in a complaint wherein all the facts upon which his demand are based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is, as in the present case, obviously based on the set of facts specifically pleaded in the other counts. Hays v. Temple, 23 Cal.App.2d 690, 695, 73 P.2d 1248.
The general demurrer was likewise properly sustained to the fifth count of the complaint. The law is established in California that a court may refuse to exercise the power to entertain an action for declaratory relief under section 1060 of the Code of Civil Procedure where its declaration or determination is not necessary or proper at the time under all of the circumstances of the case. Sec. 1061, Code Civ.Proc.; Rapaport v. Forer, supra, 20 Cal.App.2d at page 276, 66 P.2d 1242.
Applying the foregoing rule to the facts of the instant case, it is evident that plaintiff’s fifth cause of action is based on the same facts as those alleged in counts one to three inclusive of his pleading. From the facts thus alleged it is evident that there is no contract or written instrument relative to which it is necessary to have a declaration of plaintiff’s rights. Neither is it necessary to have a declaration of his rights or duties with respect to any of the defendants. Hence the court properly refused to exercise the power conferred upon it by section 1060 of the Code of Civil Procedure.
For the foregoing reasons the judgments are and each is affirmed.
We concur: MOORE, P.J.; WOOD, J.