Imágenes de páginas
PDF
EPUB

(Cal.

ed from is affirmed; as to the other defendAs to defendant Wilson, the order appealants, the same is reversed.

We concur: CONREY, P. J.; JAMES, J.

CO. (Civ. 2405.)

(38 Cal. App. 146)

(District Court of Appeal, First District, California. Sept. 3, 1918.)

1. PLEADING 403(3)-DEFICIENCY IN COM

PLAINT SUPPLY BY ANSWER.

in complaint, for insufficiency of allegation of
In action for price of automobile, any defect
nonpayment, which was that amount claimed
had been demanded and refused, and that whole
plied in defendant's answer, which alleged
was due from defendant to plaintiff, was sup-
amount of demand had been paid in full.
2. APPEAL AND ERROR 171(3)-THEORY OF

CASE BELOW-PLEADING.

payment of price of automobile sued for was in Where case was tried on theory that nonissue, defendant on appeal cannot be heard successfully to question sufficiency of plaintiff's allegation of nonpayment.

[2] Briefly stated, it appears that Mrs. Taylor, through her trustee, conveyed the land to Wilson, who, by means of fraud practiced by Jantzen, the grantor's agent, was induced to give his note secured by a mortgage upon the land for $10,000, a onehalf interest in which note was owned by Mrs. Taylor; that after Mrs. Taylor had LUGIANI v. LANDAU ECONOMIC SYPHON for a valuable consideration sold and transferred her interest in the note and mortgage, the fraud was discovered, and it was agreed by Mrs. Taylor and Wilson that the transaction should be rescinded, to effect which Wilson reconveyed the land, subject to the existing mortgage given to secure the note, one-half of which Mrs. Taylor had theretofore, by mesne assignments, transferred to plaintiffs. Conceding, as claimed by respondents, that the interest in the note acquired by plaintiffs was not the interest assigned by Mrs. Taylor to Jude, but that originally vested in Minna Jantzen as a dummy for Christian Jantzen, and who throughout the entire transaction acted in bad faith with all parties concerned, we must nevertheless hold that as to plaintiffs Mrs. Taylor's posi tion was precisely the same as though she had made the note to the former and executed the mortgage securing the same. She, through Jantzen as her agent, must be deemed to have received the benefits of the transaction and her estate must bear the burden.firmed. Section 3521, Civ. Code. Under the circumstances, to hold otherwise would not only be a monstrous doctrine, but would violate fundamental maxims of justice, among which are: "No one can take advantage of his own wrong." Section 3517, Civ. Code. And "where one of two innocent persons [as plaintiffs are conceded to be] must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer." Section 3543, Civ. Code. Assuming as true all that respondents claim as to the wrongs committed by Jantzen, both as to Mrs. Taylor and others, it was due solely to her acts that he was clothed with the powers under which he acted. As to Mrs. Taylor's administratrix, Nelle Bromley, and defendant Ball, her trustee, the order must be reversed.

Appeal from Superior Court, City and
County of San Francisco;
Flood, Judge.
Bernard J.

Action by Henry Lugiani against the Landau Economic Syphon Company. From judgment for plaintiff, defendant appeals.

Af

for appellant. Devoto, Richardson & Devoto, Louis H. Brownstone, of San Francisco, of San Francisco, for respondent.

defendant from a judgment in favor of the PER CURIAM. This is an appeal by the plaintiff in an action for the sum of $450, the agreed price of a certain automobile.

[1, 2] With respect to the appellant's contention that the complaint contains no sufficient allegation of nonpayment, the allegation criticized is that the amount claimed has been demanded and refused, and that "the whole thereof is now due and owing from said defendant to said plaintiff.” Standing alone this perhaps is not a sufficient allegation of nonpayment (Ryan v. Holliday, 110 Cal. 337, 42 Pac. 891); but the [3] Not so, however, as to defendant Wil- defendant in its answer supplied the defect son, against whom, as maker of the note, a in the complaint by specifically alleging that deficiency judgment is asked. As we have the amount of plaintiff's demand had been seen, Wilson was induced to make the note paid in full. Aside from this, however, the by means of fraud. It contained a clause under which the maturity thereof might be nonpayment was an issue in the case. case was tried upon the theory that such accelerated, which fact and the fact that it these reasons the defendant cannot now be was secured by mortgage rendered it non- heard to successfully question the sufficiency negotiable (Smiley v. Watson, 23 Cal. App. of the allegation of nonpayment. 409, 138 Pac. 367; Meyer v. Weber, 133 Cal. v. Hall, 129 Cal. 40, 43, 61 Pac. 573. Schwind 681, 65 Pac. 1110; Briggs v. Crawford, 162 On the question of the sufficiency of the Cal. 129, 121 Pac. 381); and hence, notwith- | evidence to sustain the findings of the trial standing the sale and transfer thereof before court, it is sufficient to say that we have maturity, it was subject to the defense based carefully read the record, and find appelupon the fraud and deceit practiced upon lant's contention in this regard to be withWilson in procuring it. out merit. It is true that the bill of sale

For

excess of the value of $300 was sold by Clelland to the defendant Produce Company. Plaintiff, contending that this honey was subject to the lien of the chattel mortgage, brought this action to recover the value of the honey and incidental damages. The trial judge, in determining the facts, made the following finding:

of the automobile was taken in the name of | In the year 1915 a quantity of honey in one Udall. Still he was the manager of the defendant corporation, and the automobile was at once put into use by Udall in the business of the defendant, and was so used for ten months and until it was wrecked in a collision. Repairs thereto at the instance of Udall were charged to and paid by the defendant. Much of the testimony introduced on behalf of the defendant failed for obvious reasons to commend itself to the favorable consideration of the court and was of a character which tended in effect to support the plaintiff's case.

[blocks in formation]

3. APPEAL AND ERROR 837(8) - REVIEW
EVIDENCE.
Affidavits on motion for new trial cannot be
considered, as far as the presentation of the evi-
dence is concerned, in aid of the case made at
the trial and upon which the judgment is based,
although they contain evidence of essential facts.

Appeal from Superior Court, San Diego
County; W. A. Sloane, Judge.

Action by the State Bank of Ramona against F. G. Clelland and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Bischoff & Thompson, of Escondido, for appeHant. Wirt Francis, of San Diego, for respondents.

JAMES, J. This appeal is taken by the plaintiff from an adverse judgment and is presented by the alternative method of appeal.

Defendant Clelland resided in the county of San Diego and was engaged in the business of farming and bee keeping. Being indebted to the plaintiff bank, he executed a chattel mortgage covering a number of animals and various kinds of machinery and implements, including those connected with his business as bee keeper. Among the property described was the following:

"All my bees, bee material, and implements, and hives and produce of bees."

"That the defendant F. G. Clelland, during the months of June, July, August, and September, 1915, sold to the defendant Coast Produce Comthe evidence fails to show that said honey was pany honey of the market value of $374.07; that honey previously mortgaged by the chattel mortgage herein mentioned; that said sale was without the knowledge and consent of plaintiff, but that said plaintiff was not damaged in the sum of $375, or any other sum, or at all by said sale.

[1] Counsel for appellant first contend that by this finding it was the purpose of the court to determine that honey to be produced by the mortgagor after the date of the mortgage was not, under the statute, included under the lien of the mortgage. We agree with the appellant that the statute does permit the mortgaging of any personal property which may have a potential existence at the time of the creation of the mortgage. Arques et al. v. Wasson, 51 Cal. 620, 21 Am. Rep. 718; Wilkerson et al. v. Thorp et al., 128 Cal. 221, 60 Pac. 679. The statute (section 2955, Civ. Code) formerly contained an enumeration of various kinds of property which might be made the subject of a chattel mortgage, and this list was added to at various sessions of the Legislature. However, by the last amendment made, the terms of the statute were entirely changed, and as it now reads it provides that mortgages may be made upon growing crops and upon "any and all kinds of personal property," except certain things not necessary here to be enumerated. Passing the point first presented, it will be noted that by the finding the court determined that "the evidence fails to show that said honey was honey previously mortgaged"-in other words, the finding is that the plaintiff failed to show that the honey sold to the Produce Company defendant was honey covered by the chattel mortgage. In the absence of any showing to the contrary, we must assume that the evidence supported the finding of the trial judge.

[2] Under the alternative method of appeal the parties are required to print in their briefs such portions of the testimony as they desire to call attention to. We find no sufficient transcript of the testimony in the briefs to illustrate the point, and for that reason alone would be justified in affirming the judgment. Barker Bros. v. Joos, 171 Pac. 1085. However, without any obligation so to do, we have examined to some extent the transcript of the testimony on file in typewritten form, and are of the opinion that

the plaintiff did not sustain the burden of proof and show that the particular honey purchased by the Produce Company was honey which had been produced by Clelland from the bees and apiary stock included in the mortgage. For aught that is shown by the testimony expressed in the record, Clelland may have purchased all or a part of the honey which he sold to the Produce Company, and if such was the case plaintiff would have had no lien thereon.

[3] The affidavits used on the motion for a new trial, which present evidence as to this essential fact, cannot be here considered in aid of the case as made out at the trial and upon which the judgment of the court was based.

The judgment appealed from is affirmed.

record contains evidence from which the only fair inference to be drawn is the inference that a surrender took place. They further contend that the function of determining what inferences might be drawn from the evidence was with the trial court, and that an appellate court may not disturb such finding, unless it appears that there is no evidence to support it, or that the evidence is so clearly preponderating against the finding as to amount, in legal effect, to a want of substantial evidence (Williams v. Kidd, 170 Cal. 631, 151 Pac. 1, Ann. Cas. 1916E, 703), and that the powers of this court are also limited where opposing inferences may be reasonably drawn from disputed facts (Rice v. Carey, 170 Cal. 748, 754, 151 Pac. 135). The plaintiff does not controvert these contentions, but maintains that the record

We concur: CONREY, P. J.; SHAW. J. does not disclose any evidence supporting, or

(38 Cal. App. 155)

tending to support, the inference which the trial court drew. To solve the problem, there is little evidence in the record. Au

D. SAMUELS REALTY CO. v. NUNAN et al. gust 15, 1906, Maurice V. Samuels, as owner,

(Civ. 2419.)

[blocks in formation]

STURTEVANT, Judge pro tem. This is an action on a written guaranty executed to se cure the performance of the terms of a written lease. The defendants had judgment in the trial court. The plaintiff moved for a new trial, the motion was denied, and from the order denying said motion the plaintiff appealed, and has brought up the evidence in a bill of exceptions.

If there was a surrender of the lease by the original lessees, and an acceptance of the premises by the landlord, it is conceded that the judgment should be affirmed. The defendants in their answer pleaded a surrender and acceptance, and the trial court made findings sustaining the defense. The question, as presented to this court, is solely as to whether such findings are sustained by the evidence. It is not contended that there is any direct evidence in the record on this issue; but the defendants contend that the

leased to F. J. Bonney and J. V. Owens the southeast corner of Eighth and Clementina streets. Said lease had attached to it a written guaranty signed by Matthew Nunan; the lease was for a term of five years from October 1, 1906. The lessee entered and held possession till February 20, 1907. Speaking of about that date the lessor testified:

"I know that a man named Michel was in possession of the premises after Owens and Bonney left. One of my brothers, as I remember it, wrote to me in New York that Owens and Bonney wanted to get out, and that Matthew

Nunan was willing to guarantee another man named Michel. I don't know whether Owens and Bonney were quarreling, or didn't pay, or something. I think the letter giving me this information was received by me some time around February 20, 1907. Q. Prior to the execution of this letter you were advised by one of your brothers, or one of your relatives out out, and that there was a man named Michel here, that Owens and Bonney wished to go who wished to go in? A. That is my impression. Q. And Mr. Nunan was willing to guarantee the payment of the rent by Michel if you were agreeable to that course; is that correct? A. That is my impression. Q. You stated that you were? A. I was quite willing, certainly, as long as Mr. Nunan, who was responsible, was there. I didn't care who was in there. Q. And Messrs. Owens and Bonney did leave the premises at or about that time did they not? A. I think so, because the reports received in New York read 'Michel.'

On February 20, 1907, Nunan wrote to the owner's brother:

"Confirming my phone message to you of yesterday, beg to state that I will allow my name to remain on the bond of M. Michel, Suc. to James V. Owens & Co., corner 8th and Clementina St."

There is no evidence that any bond except the guaranty was signed by Nunan. Thereupon the original lessees vacated the premises and Michel entered. He remained a tenant till September, 1907, at which time he and Marchand went to J. L. Samuels, and Marchand says:

the rent.'"

In June or July, 1908, Marchand sold to Berton, and at that time the two called on J. L. Samuels and Marchand says:

"When I went to see Mr. Samuels at the store, I told him I bad sold out the place to Berton, and asked him if he wanted that man for his tenant. He said, 'Yes; so long as he pays the rent.""

"Michel presented me to Mr. Samuels, and, predecessor in interest was the owner of two asked Mr. Samuels if he wanted me for a ten- parcels of land; one parcel being described ant. Mr. Samuels said, 'Yes; so long as I paid as lots 3, 6 and 7, and the other parcel being a certain 40 acres immediately adjoining thereto, a portion of which is involved in this suit. Plaintiffs' predecessor with his family lived upon the property; his dwelling house being mainly located upon lot 7, but a portion of the house extended over upon the adjacent 40 acres. An inclosed yard extended also upon the 40 acres immediately surrounding, as we understand it to be, the rear of the house. At about the year 1894 plaintiffs' predecessor moved from the house and took his family away, and did not thereafter reside in that vicinity. A creditor of plaintiffs' predecessor obtained a judgment against mentioned, which lots were later sold under execution. Defendant's intestate was the purchaser at the execution sale. This purchaser was at the time occupying the house located as we have described it, and at the time he purchased the property under the execution sale he was aware of the fact that the house stood partly upon lot 7 and partly upon the adjacent 40 acres, title to which latter remained undisturbed in plaintiffs'

The rent was paid to J. L. Samuels. The receipts were made out in different ways; some receipting to Michel, some to Berton, and at least one to J. B. Johnson, who had backed Berton. While it will be conceded that the story, as gathered from the foregoing recitals, contains but very little touch-him and levied upon lots 3, 6, and 7, before ing the subject of surrender, yet we think it cannot be successfully maintained that there was no evidence on the subject. While reasonable minds may differ as to whether a surrender was intended, this court is not entitled to interfere. Williams v. Kidd, Rice v. Carey, supra.

The judgment should be affirmed; and it is so ordered.

We concur: Judge pro tem.

(38 Cal. App. 144)

LENNON, P. J.; BEASLY, predecessor. There is nothing in the record

GISH et al. v. HUCKABY. (Civ. 2579.) (District Court of Appeal, Second District, California. Sept. 3, 1918.)

1. LANDLORD AND TENANT ~66(2)—ADVERSE POSSESSION.

Owner of house, a small portion of which was situated on adjoining land, part of which land he at times, with owner's consent, farmed, who at no time notified such owner that he disclaimed the relationship of landlord and tenant as to the ground included within fence around house, did not merely, by alleging ownership of house, occupy such land adversely to owner. 2. ADVERSE POSSESSION 89 PAYMENT OF TAXES.

Where claim to prescriptive title to land is not founded upon a written instrument, judgment, or decree, claimant must show, in support of his claim, that he had paid all taxes levied and assessed against the property, as required by Code Civ. Proc. § 325.

Appeal from Superior Court, Inyo County; J. P. Wood, Judge.

Action by J. L. Gish and another against Emily Huckaby, administratrix of the estate of George W. Huckaby, deceased. Judgment for plaintiffs, and defendant appeals. Affirmed.

P. W. Forbes, of Independence, and S. E. Vermilyea and S. L. Carpenter, both of Los Angeles, for appellant. A. H. Swallow, of Bishop, for respondents.

JAMES, J. Action to quiet title. Defend ant appeals from a judgment entered in favor of the plaintiffs.

In

presented which tends to show that by the execution sale any property in excess of lots 3, 6, and 7, was pretended to be sold to the defendant's intestate. However, at a later date defendant's intestate set up a claim of title to all of that portion of the 40 acres included within the inclosed yard at the rear of the house which he was occupying. During the early part of his occupancy of this house, and continuing down until after the year 1906, defendant's intestate farmed portions of the 40 acres belonging to plaintiffs' predecessor, with the consent of plaintiffs' predecessor expressed in communications by letter. letters written by defendant's intestate to plaintiffs' predecessor, such intestate referred to the ground as the ranch of plaintiffs' predecessor, and it is very clear from the correspondence which is exhibited by the record that the entire 40 acres belonging to plaintiffs' predecessor was included in the term "ranch." The trial judge found that defendant's intestate had occupied the land continuously and that his possession had been open and notorious, but determined that such possession not been adverse to plaintiffs' predecessor. It was further found that plaintiffs and their predecessor had paid all taxes levied and assessed against the property.

It is appellant's contention that the evidence does not justify the finding of the court as to either of these propositions. We cannot agree with this contention, especially as to the first question presented. Admittedly the possession by defendant's intestate of the 40 acres of land was at all times in the nature

[1, 2] At about the year 1889 plaintiffs' of a tenancy with the consent of plaintiffs'

Tyrrell, Abrahams & Brown and Chas. W.

Milton K. Young and W. D. Finch, both of
Los Angeles, for respondents.

predecessor. No showing was made indicating that defendant's intestate ever notified | Fricke, all of Los Angeles, for appellants. plaintiffs' predecessor that he disclaimed any relation of landlord and tenant as to the ground included within the fence. The only hint of such a contention is found in the statement of defendant's intestate to the effect that, when at one time plaintiffs' predecessor wrote him suggesting that the house should be painted, he replied that he would paint it when he thought it needed it, as he claimed it as his own. As the larger portion of the building was located upon lot 7, which defendant's intestate had purchased under the execution sale, his notification of alleged ownership to plaintiffs' predecessor was wholly consistent with his occupation of the 40 acres as a tenant. As to the second proposition, assuming that the evidence did not show that plaintiffs and their predecessor had paid all taxes levied and assessed against the property, it does not appear that defendant's intestate had made such payments; and we think that it was essential in support of the claim of title by prescription that it be shown that all taxes levied and assessed against the property had been paid by the adverse claimant, as required by the provisions of section 325 of the Code of Civil Procedure. Reynolds v. Williard, 80 Cal. 605, 22 Pac. 262; McGrath v. Wallace, 85 Cal. 622, 629, 24 Pac. 793. The claim of prescriptive title made by defendant's intestate was not founded upon a written instrument, judgment, or decree.

[blocks in formation]

(38 Cal. App. 141)
ENGEBRITSEN et al. v. LATIN-AMERI-
CAN PUB. CO. et al. (Civ. 1809.)
(District Court of Appeal, Second District, Cali-
fornia. Sept. 3, 1918.)

1. APPEAL AND ERROR 931(1) - ASSIGN-
MENT OF ERROR-ABSENCE OF FINDINGS-
PRESUMPTION.

Where error is claimed because of the absence of a finding on a material issue, it must affirmatively appear that evidence was presented from which the trial judge would be required in writing to determine the fact, and in the absence of such showing it will be presumed there was no evidence.

2. PLEDGES 33 PLEDGOR'S CROSS-COMPLAINT FOR DAMAGES-BURDEN OF PROOF.

In an action on a promissory note for printing, which was secured by the retention by plaintiff of certain books, and defendant crosscomplained that such books had never been delivered to it, the burden was on plaintiff to show facts in excuse of its refusal to deliver the books on demand.

JAMES, J. Prior to September, 1913, plaintiff copartnership contracted with defendant copartnership to print and bind a certain lot of text-books for defendant. When the work was completed defendant copartnership was unable to pay the full amount due to the plaintiff on the contract, and a supplemental agreement was thereupon entered into, whereunder the defendant executed to the plaintiff its promissory note in the sum of $300, and it was agreed between the parties that 3,000 copies of the book then ready for delivery should be held by the plaintiff as security for the payment of the promissory note. In this action plaintiff sought to recover judgment on the $300 promissory note. The defendant, by answer and cross-complaint, pleaded that the 3,000 books had never been delivered to it. Answering the cross-complaint, the plaintiff set up that the 3,000 books had been destroyed by fire while in its hands. Affirmative judgment for the sum of $200 damages was entered in favor of the defendant. This ap peal is taken from that judgment, and is presented on the judgment roll alone.

In the supplemental agreement hereinbefore referred to the plaintiff agreed as to the 3,000 books held as security that it would "store and keep the same safely at its own risk, except as to conditions beyond its control, and will deliver the same to the LatinAmerican Publishing Company, or its order.

Referring to the destruction of the books, the plaintiff in its answer to the cross-complaint alleged:

"That said fire was caused by matters and things without and beyond the control of crossdefendants, and was wholly without any negligence or fault of cross-defendants."

Touching this issue, the court in its findings of fact determined as follows:

"That while said 3,000 books were still in the possession of said plaintiff and being stored at its own risk, except as to conditions beyond its control, the said books were destroyed by fire, on the 1st day of February, 1914; that said fire took place at the printing house of the plaintiff and cross-defendant, but that the destruction of said books by said fire was not a condition beyond the control of said Standard Printing Company."

It is argued on behalf of appellant that this finding is insufficient to support the judgment, first, because the court neglected and omitted to affirmatively find upon the

Appeal from Superior Court, Los Angeles allegation contained in the plaintiff's anCounty; Wm. D. Dehy, Judge.

Action by E. D. Engebritsen and H. White, doing business under the name of the Standard Printing Company, against the LatinAmerican Publishing Company and others. Judgment for defendants on their crosscomplaint, and plaintiffs appeal. Affirmed.

swer to defendant's cross-complaint, where in the plaintiff alleged that the fire was caused without any negligence on its part. The case being presented on the bare judgment roll, we have no means of knowing whether there was evidence heard in the trial court upon that question.

« AnteriorContinuar »