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District Court of Appeal, Third District, California.

Albert J. BATINI and Dolindo Massei, Plaintiffs and Respondents, v. Louis HOFFMAN and Harold Stelling, individually, and as copartners doing business as The Royal Showcase Company, Defendants and Appellants.*

Civ. 8880.

Decided: November 20, 1956

G. H. Van Harvey, San Francisco, for appellants. Falk & Falk, Eureka, for respondents.

This is an appeal from a money judgment in an action brought upon a common count for an amount alleged to have been paid by respondents on behalf of the appellants.

The money paid by respondents was paid in satisfaction of a judgment recovered against respondents by one Nelson Rossig. In that prior action Rossig sued respondents herein, appellants herein and Marine Electric Company for the reasonable value of his services in installing on the property of respondents certain refrigeration equipment which respondents had purchased from appellants and which appellants in turn had purchased from Marine Electric Company. In the Rossig action appellants herein and Marine Electric Company were granted nonsuits at the close of Rossig's case in chief. The action then proceeded against respondents herein, and Rossig obtained a judgment against them. Respondents paid the judgment and then brought this action to recover from appellants the money so paid out by respondents, alleging it to have been paid out on behalf of appellants and at their request. In response to the common count pleaded against them by respondents, the appellants generally denied the allegations of the complaint and pleaded a special defense of res judicata, alleging that in the prior action brought by Rossig all issues as between respondents and appellants herein, co-defendants in the Rossig action, had been litigated and that it had thus been adjudged as between the parties to this action that any sums that may have been paid by respondents upon the demand of Rossig were as between the parties hereto the sole obligation of respondents herein and not money laid out for appellants' benefit.

We do not have before us either the evidence presented in the prior action or the judgment roll therein. It appears that the judgment roll was introduced in evidence, but appellants have not caused the same or a certified copy thereof to be presented here in accordance with Rule 10(b) of the Rules on Appeal. We assume, therefore, that the only thing determined in that action was that respondents herein were indebted to Rossig for the reasonable value of his work and labor in installing the refrigerating equipment in and on the property of respondents; and that whatever were the issues between defendants in the Rossig action as to the person upon whom the ultimate liability to pay Rossig lay, the same was not litigated; that on the contrary, for some reason, appellants herein succeeded in securing in their favor a nonsuit at the close of Rossig's case in chief and thereupon departed from the action. On this record, therefore, appellants' contention that the issues herein litigated were also litigated in the Rossig action cannot be sustained.

Appellants further contend that there is not sufficient evidence in the record to sustain the trial court's findings of fact. Those findings may be summarized as follows: That on October 16, 1946, the respondents and appellants entered into an agreement providing in part that appellants would furnish to respondents certain refrigeration equipment; that by the terms of that agreement appellants agreed to install the equipment in the premises of respondents; that thereafter appellants engaged the services of Marine Electric Company as subcontractors to install said equipment; that Marine Electric Company engaged Rossig to do the work; that Rossig did the work and presented his charges therefor to respondents herein, which charges were reasonable for the work done; that respondents paid the charges of Rossig in accordance with the judgment rendered in favor of Rossig against respondents herein in an action brought by Rossig against respondents herein; that in said action appellants herein were joined as co-defendants with respondents, but that during the course of the trial a nonsuit was granted in appellants' favor. In the findings the trial court stated further that the judgment in the Rossig action did not constitute an adjudication of the issues pleaded in the present action between respondents and appellants nor present any issue as to any liability of appellants to respondents for the charges of Rossig. The court further found that upon payment of the Rossig judgment, appellants herein became indebted to respondents for the money so laid out.

As to the terms of the agreement between respondents and appellants, Mr. Batini, testifying at the trial of the action herein, said that the agreement placed upon appellants the burden not only of furnishing the refrigeration equipment but also that of installing it and all for the agreed price which respondents paid to appellants. That testimony sufficiently supports the trial court's finding that by the terms of the agreement appellants promised to install the refrigeration equipment in the premises of respondents. There was other evidence to the same effect. Thus, when Rossig threatened to sue respondents, Mr. Batini forwarded the damand to Mr. Stelling, one of appellants, appending the following notation: ‘Are you goint to pay your Bills—With Our Money—or have us sewed. This is not our way of doing Business. We paid you promptley.’ Stelling wrote in reply that the Marine Electric Company was responsible for the bill as ‘the supplying of the refrigeration equipment and its installation was a sub-contract between ourselves and the Marine Electric Company of San Francisco.’ The situation presented then is this: Appellants agreed to sell and, at their cost, to install on the premises of respondents certain refrigeration equipment. So far as respondents were concerned appellants performed that agreement, Mr. Rossig doing the work of installation. The contract was completed and no breach thereof occurred. Nevertheless, Rossig was able to obtain a judgment against respondents. We are not here concerned with the circumstances under which that occurred, for as between appellants and respondents the money respondents were forced to pay Rossig ought to have been paid by appellants. Respondents, therefore were compelled to lay out money for the benefit of appellants, and the trial court correctly adjudged that appellants were thereupon obligated to repay the monies so laid out. “One who is compelled, by reason of a legal liability therefor, to pay an obligation for which another in equity and good conscience should pay, may recover from that other the money so paid. It is not necessary that the payment should have been coerced by actual legal proceedings; the mere existence of the legal liability is sufficient.” Weaver v. Fickett, 82 Cal.App. 116, 120, 255 P. 257, 259. We quote the following from Page v. Podol, 4 Cal.App.2d 229, 231, 41 P.2d 167, 168:

‘Plaintiff relies upon the equitable doctrine that one who is compelled to pay a debt or whose property is made liable for a debt which another in good conscience ought to pay is entitled to recover against that other the amount so paid. In commenting upon this rule the Supreme Court said in Finnell v. Finnell, 159 Cal. 535, 539, 114 P. 820, 821: ‘The soundness of this doctrine has been upheld by innumerable decisions of courts of the highest authority in many jurisdictions and it is so obviously just and reasonable that it is matter of wonder that it should ever have been called in question.’'

Appellants contend that there was in the record no evidence that the amount paid by respondents was the reasonable value of the work of installing the refrigeration equipment. Assuming that such proof was necessary, the assignment is not supported by the record. During the trial Mr. Stelling admitted that if all of the equipment, including tubing and gas, which was itemized in the statement from Mr. Rossig, had been necessary for the job then the charges would not have been unreasonable; and Mr. Batini testified directly that all of the items itemized had actually been used in the installing of the equipment.

The judgment appealed from is affirmed.

VAN DYKE, Presiding Justice.

SCHOTTKY and PEEK, JJ., concur.

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