Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.


Civ. 15386.

Decided: May 25, 1953

Lawrence Sledge, Oakland, for appellant. Pierre A. Fontaine, Oakland, for respondent.

Appeal by plaintiff from a judgment for defendant. The complaint stated a common count for money had and received. It alleged that defendant received $3,900 as agent for, and for the use and benefit of plaintiff which sum, being previously demanded, has not been paid. No other cause of action is alleged. The answer is a general denial.

The matter came on for trial and almost immediately plaintiff offered a written contract which (according to the trial judge) contained a clause for liquidated damages. The court thereupon refused to admit the contract into evidence. Plaintiff was denied leave to amend the complaint over objection that this would entirely change the cause of action from one on a common count to one on a contract for liquidated damages. The contract is not in the record nor before this court. Plaintiff and defendant both then rested and judgment was entered for defendant.

No offer of proof was made which would indicate how or why the particular contract would establish some fact that would lead to a situation where money was had and received; hence it does not appear how this contract would be relevant to the ultimate issue.

It is incumbent on appellant to present a record which affirmatively shows error. Vaughn v. Jones, 31 Cal.2d 586, 601, 191 P.2d 432; Utz v. Aureguy, 109 Cal.App.2d 803, 807, 241 P.2d 639; Dallman Supply Co. v. Smith-Blair, Inc., 103 Cal.App.2d 129, 134, 228 P.2d 886; Wyman v. Municipal Court, 102 Cal.App.2d 738, 741, 228 P.2d 89, 229 P.2d 491; Palpar, Inc., v. Thayer, 83 Cal.App.2d 809, 811, 189 P.2d 752. No error is shown by the record presented.

Judgment affirmed.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.