Ernest Roth & Co. v. Werby
Ernest Roth & Co. v. Werby
Opinion of the Court
Plaintiff had agreed to finance the purchase by Allied Wholesale Lumber Company, a corporation, of large quantities of Swedish insulation board. As the market for this product weakened, plaintiff sought relief from its obligation. Defendant Donald E. Werby was president of Allied. He and his wife executed a letter by which he acknowledged an advance by plaintiff, and agreed to secure letters of credit which would cover plaintiff’s remaining financing obligations. Plaintiff’s complaint is based upon this agreement. Defendants’ answer alleged that the letter had been superseded by an oral agreement between Donald and plaintiff, fully executed by Donald, that he would sell the board for plaintiff’s account and would be paid for such services. Donald’s cross-complaint sought this compensation.
After non jury trial, the court found that the letter agreement had been executed as alleged in the complaint, but that it had been wholly superseded by an oral agreement with Donald which had been fully performed by him. All other allegations of the complaint and cross-complaint were found to be untrue. No recovery was allowed on either complaint or cross-complaint, and defendants were awarded costs. Plaintiff appeals from the judgment.
Appellant argues that the findings are in irreconcilable conflict, because if the pleaded oral agreement had in fact been fully performed, cross-complainant Donald Werby was entitled to some recovery under it. Plaintiff, of course, cannot complain of the judgment in his favor on the cross-complaint. However, if the essential findings are in conflict, he is entitled to a reversal (Spaulding v. Cameron, 38 Cal.2d 265, 269-270
At oral argument, appellant attacked the generality of the findings. While findings by general references to the pleadings have been criticized, particularly in the older cases, the propriety of this procedure is now established (2 Witkin, Cal. Procedure, pp. 1846-1847).
Judgment affirmed.
Salsman, J., and Devine, J., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.