Opinion
Rehearing Denied Jan. 23, 1940.
Hearing Granted Feb. 26, 1940.
Appeal from Superior Court, Los Angeles County; Goodwin J. Knight, Judge.
Action by the Pacific Venture Corporation against John W. Huey and others to recover a sum of money alleged to be due pursuant to certain written agreements. From a judgment for defendants, plaintiff appeals.
Affirmed.
COUNSEL
Betts & Garrison, of Los Angeles, for appellant.
Robert E. Austin and John N. Helmick, both of Los Angeles, for respondent Albert Beck.
Andrew J. Copp, Jr., of Los Angeles, for respondents.
OPINION
McCOMB, Justice.
From a judgment in favor of defendants after trial before the court without a jury in an action to recover a sum of money alleged to be due pursuant to certain written agreements, plaintiff appeals.
The essential facts are:
July 15, 1936, plaintiff’s assignors entered into a contract of sale with defendants John W. Huey and George G. Urie and conveyed to them all of their right, title, and interest in and to certain mining claims. By the terms of the contract defendants Huey and Urie agreed to pay to plaintiff’s assignors as the purchase price the sum of $1,891 upon the execution of the contract, and the further sum of $2,500 either out of ten per cent of all royalties or other proceeds received by them or in the event of a sale of the property the sum of $2,500 out of the final payment thereon. $1,891 was in fact paid as agreed. Subsequent to July 15, 1936, defendants Huey and Urie entered into an agreement with defendant Albert Beck, reading as follows:
"Huntington Park California"July 24, 1937."Agreement
"In consideration of $1.00, and other good and sufficient considerations, I, Albert Beck, do hereby agree that the final and last payment on the deal whereby Albert Beck is exchanging certain equities in one apartment house at 1102 West 41st Place, Los Angeles, and 80 acres of land in Imperial Valley subject to their respective mortgages or trust deeds, etc., and as the final and last payment for certain mining claims etc. in Santa Cruz County, Arizona, due John W. Huey and George G. Urie, Albert Beck hereby agrees to pay to the Pacific Venture Co. or their assignors or successors in interest, the $2500.00 mentioned in that certain agreement between John W. Huey, George G. Urie and Pacific Venture Co. and or M.E. Rogers and John A. Hassell dated July 15, 1936.
"Albert Beck agrees to pay this $2,500.00 as per the terms and conditions provided in said contract to the legal owners or holders of the above mentioned contract, which shall complete the final and last payment to Huey and Urie for above described mining claims. The quit claim deed to be delivered to Albert Beck or his assigns for the interest owned by Huey and Urie in the above mentioned mining claims carries only Huey and Urie’s interest after this agreement has been signed and delivered and the complete title to said aforesaid mining claims has been paid for by carrying out of payment as per conditions of the contract between Huey, Urie, and Pacific Venture Co. and or M.E. Rogers and John A. Hassell.
"Albert Beck
John W. Huey
"L.E. Moore George G. Urie"
It is conceded that neither defendant Huey nor Urie has received any royalties from the mining claims.
February 14, 1938, as assignee of the vendors in said contract of July 15, 1936, plaintiff filed this action to recover $2,500 with interest from July 24, 1937, and for a foreclosure of the contract, on the theory that the final payment thereunder had become due by reason of the sale of their equity by Huey and Urie.
These are the questions necessary to be determined:
First: Has an obligation arisen upon the part of defendants Huey and Urie to pay to plaintiff the sum of $2,500 under the agreement of July 15, 1936?
Second: Has any obligation arisen on the part of defendant Albert Beck to pay to plaintiffs the sum of $2,500.00?
The first question must be answered in the negative. It is conceded that defendants Huey and Urie have not received any royalties from the properties which they conveyed to plaintiff’s assignor, nor have they received the final payment for the sale of those properties to Albert Beck, because by the terms of the agreement between defendant Beck and themselves it is expressly provided that as and for the final and last payment for the claims which Beck agreed to purchase from his codefendants on July 24, 1937, he would pay $2,500 to plaintiff. It is also conceded that this final payment has never been made. Therefore, neither of the conditions under which defendants Huey and Urie were to become obligated to pay the sum has arisen.
There is no merit in plaintiff’s contention that defendants Huey and Urie have placed it out of their power to perform their contract with plaintiff. On the contrary, their agreement with defendant Beck is substantial evidence that they have made an arrangement for the performance of their obligation.
The second question must also be answered in the negative. Defendant Beck agreed to make the payment of $2,500 "as per the terms and conditions" provided in the contract between plaintiff’s assignor and Beck’s codefendants. The contract referred to provided that the $2,500 payment should be made either out of ten per cent of the royalties or other proceeds received by them or, in the event of a sale of the property, out of the final payment. There is no evidence or finding that defendant Beck had received any royalties or other proceeds or a final payment for the sale of the property. Hence the contingency upon which his obligation to pay plaintiff might arise has not occurred, and plaintiff’s right as against this defendant remains inchoate.
There is no merit in plaintiff’s contention that the findings and judgment preclude his recovering from either of the defendants at some future time, should any or all of the contingencies upon which their obligation is dependent occur.
For the foregoing reasons the judgment appealed from is affirmed.
We concur: MOORE, P.J.; WOOD, J.