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District Court of Appeal, Second District, Division 1, California.


Cr. 2876.

Decided: July 22, 1936

Donald MacKay, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.

Defendant appeals from a judgment entered against him in a jury–waived trial; also from an order denying his motion for a new trial. It is contended that the evidence is insufficient to support the judgment and that the court erred in matters of law.

In April, 1932, the complaining witness, a Mrs. Biddlecom (sometimes called Mrs. Biddlecon), purchased from one Robkins, a business associate of defendant, five $1,000 real estate bonds for $4,100. A default arose in connection with the bonds shortly thereafter, and Mrs. Biddlecom, accompanied by one Louis Friedman, now deceased, who had been handling some business matters for her, called upon the defendant. At this interview, defendant, according to Mrs. Biddlecom, said: “Inasmuch as my salesman sold those bonds to you, I feel morally obligated to help you.” The bonds were delivered to the defendant on that day, August 20, 1932, and he gave to Mrs. Biddlecom his dated receipt therefor. They had depreciated in value to 25 or 30 cents on the dollar. They were never returned to Mrs. Biddlecom. Defendant testified that on the day he received them he turned them over to Friedman, who had been handling deals for him as well as for Mrs. Biddlecom, and never saw them again. On August 27, 1932, the bonds were placed in escrow by one Kahn, also a salesman of defendant, at a selling price of $1,500. They were delivered to a purchaser at that price on September 7, 1932. That same day defendant mailed a trust deed note, reduced to approximately $940 to Mrs. Biddlecom, notifying her that the balance of her papers he would keep in his office for the purpose of making her collections. There was testimony given by a notary, upon referring to her notarial record, that on September 9, 1932, defendant executed and acknowledged a grant deed for five lots in Deer Lake Highlands in which Mrs. Biddlecom was named as grantee, and that the deed was taken up from the desk upon which she placed it by Friedman. Mrs. Biddlecom testified that she never received a deed to any lots in Deer Lake Highlands. There was introduced in evidence the following writing:

“Los Angeles, California.

“Mr. Willard Marble, 817 South Western Avenue, Los Angeles, California.

“Dear Mr. Marble: This is your authorization to act as my agent in exchanging five bonds for a first deed of trust, including furniture, balance $940.00, payable at $15.00 per month, and five lots in the Deer Lake Highlands subdivision, which I authorize you to exchange for deed of trust, which are to be guaranteed. Yours very truly,

“Susie H. Biddlecom.”

Defendant testified that this document, which we shall call the trade authorization, was signed and given to him by Mrs. Biddlecom on the morning of August 20th, and that he handed her his receipt for the bonds on the afternoon of the same day. Mrs. Biddlecom, however, testified that she signed the document “either the last of August or September,” and further fixed the time by saying she received the trust deed note several days after she signed the authorization. Regardless of when the instrument was signed, there can be no question that on the day when defendant receipted for the bonds, August 20th, it was the plan of all parties to trade them. Mrs. Biddlecom stated: “Mr. Friedman took me back to the office with the bonds after we got them out there (i. e., at the Hollywood Bank) and Mr. Marble took them at that time to trade them.” The defendant testified: “Mr. Friedman told Mrs. Biddlecom I had some trust deeds and lots I would exchange for her bonds.” The idea of a trade may have been abandoned temporarily by Mrs. Biddlecom, for she testified that she requested return of her bonds before signing the trade authorization, but if so, it was resumed when that instrument was signed. It appears that the purpose was to get the original amount of Mrs. Biddlecom's money out of these bonds. Of course that could not be done by selling for $1,200 or $1,500 bonds which had cost her $4,100. A deal or trade for other assets which in turn might be traded or manipulated in some way, was the only possible means of extricating her from her difficulty.

A week or so after defendant mailed Mrs. Biddlecom the trust deed note and, according to his testimony, gave Friedman the deed for the five lots, the deed of trust and assignment thereof, for the express purpose of delivering them to Mrs. Biddlecom; she called on defendant, stated that she was dissatisfied with the trust deed note, and asked for her bonds, saying that she had a purchaser for them. She testified that she did not ask then for money but for the bonds, inquiring if she could get them back that afternoon or the next day, and that defendant said, “Why yes, if we can't get the bonds, we will go down on the street and buy you some bonds.” If defendant said that, it was at least inferential notice that the bonds had passed from his hands. However, he denied that he said it. The fact is, no bonds were purchased for, or delivered to, Mrs. Biddlecom; instead, she was given at that interview, September 15, 1932, a promissory note for $4,100 payable in two years at 7 per cent. per annum, signed by defendant. This note she still holds and produced as an exhibit at the trial. The same is true of the $940 trust deed note. She also, on August 19, 1933, received from the defendant an agreement to assign within ten days after production should be reached, 3 per cent. of the interest of Willard Investment Company in an oil well then drilling. As to this transaction, defendant testified: “She simply wanted the money. I said, ‘I can't pay you it now.’ I said I could give her the assignment of that when the well came in, ‘to be sure you would have something for the money in case anything happened to me in the meanwhile.”’

Prior to August 20, 1932, Mr. Robkins and Mrs. Biddlecom had purchased a lot in Hollywood, each acquiring a one–half interest. For her half, Mrs. Biddlecom paid $800. She testified that defendant told her he would insist on Robkins deeding to her his half interest and that was done, Mrs. Biddlecom paying nothing for the deed. On examination by the court, Mrs. Biddlecom stated that the plan was for the defendant to trade her bonds for the $940 trust deed and note, and the five lots in Deer Lake Highlands, the lots then to be traded for deeds of trust; that there was some discussion as to the property to which at least one trust deed would attach; that defendant “figured them up, and he said, ‘Well, that is $3,900.00,’ and he says, ‘We will let the lot take care of the rest of it’ * * * the half of the lots he was going to have Mr. Robkins transfer to me.” The conveyance of the Robkins' interest to Mrs. Biddlecom was secured at some time subsequent to September 7, 1932, the day on which defendant mailed her the $940 trust deed note. As to the giving of the note for $4,100, the defendant testified as follows: “Mrs. Biddlecom said she was dissatisfied, she had a man named Gardner, I believe that was the gentleman's name that––called her on the phone and told her he would give her $4,100 cash for the bonds. I told her I thought that it was quite odd he would offer that amount when you could go down on the street and possibly buy them for 30 or 35 cents on the dollar; but she explained to me that he wanted to get a certain amount of those bonds together and was willing to pay her the $4,100. Mr. Friedman came in and we discussed the matter with him, and he said, ‘I think we can take the lots and trust deed and realize that much money out of them.’ We discussed the fact giving Mrs. Biddlecom the note for the $4,100 she was promised for the bonds, she could have sold the bonds for.” Defendant also gave the following testimony: “My arrangement with the trust deed (and) the lots was made with Mr. Friedman, I made him a price on it, and whatever the difference was, it was between that price and whatever money he received for the bonds was to be paid to the office. * * * I agreed to sell to Mr. Friedman the trust deed note and the five lots for $900; whatever he made out of it was no business of mine; if he got $5,000, it was no business of mine.” Later, the following testimony was given:

“The Court: * * * About the last thing you said yesterday afternoon was that you were to get $900 for the five lots and the trust deed note and trust deed. A. Yes sir.

“Q. With that in mind, how is it that you gave your note on or about the 15th of September––the exact date I don't recall––to the complaining witness? * * * A. Mr. Friedman said he had seen Mrs. Biddlecom the evening before, and she was coming in; he stayed around the office, and we were discussing the case, and he said, ‘Mrs. Biddlecom is dissatisfied with her transaction.’ He said––‘We agreed to get her out around $3,900 to $4,100 by trading and exchanging these lots for trust deeds at that time,’ then Mrs. Biddlecom came in and we further discussed it with Mrs. Biddlecom. She was satisfied to accept my note for the $4,100, and Mr. Friedman was to give me his note for the difference. * * *

“Q. In other words, the bonds were, on the basis of the information you had, worth around, somewhere around maybe twelve or thirteen hundred dollars? A. Yes, sir. We were not taking the valuation of the bonds into consideration alone; the basis of that, the reason we gave that note was the fact we could make the exchanges and Mr. Friedman agreed to make the exchanges with her. * * *

“Q. And all you were expecting to get out of the trust deed note and the five lots was $900? A. Yes, sir.

“Q. Well, now, if that is so, why would you give a note for $4,100? A. Because Mr. Friedman was to stand the difference between the $900 and the $4,100. I was actually standing nothing except the note and the lots.”

Defendant also testified: “Mr. Friedman, as a broker, had a list of about 35 or 40 trust deeds, and had arrangements made for the exchanging of some of those lots for trust deeds, which later the trust deeds could be sold * * * Mr. Friedman had been handling Mrs. Biddlecom's business, I imagine, a couple of months, and did various other transactions, and he agreed to get her out the $4,100, he explained to me. * * * On the morning Mrs. Biddlecom came in, Mr. Friedman figured out on a piece of paper where he could get $4,100 out of the note, and the trust deed and the lots, by making the exchange, and that was the basis for the note which we gave later.”

Mrs. Biddlecom testified that she had many conversations with defendant after she received the $4,100 note, and that on several occasions she went with him and his wife to the site of the oil well; that defendant assured her they were going to bring the well in and that they had a good proposition, and “that I would get my money.” She stated that in 1933 there were various interviews and conversations with him “always about indebtedness”; testified that “Mr. Marble never stated to me that he had sold the bonds for $1,500,” but “* * * I gave up the idea of getting the bonds from him * * * he told me * * * he thought he could get them back; and then I ceased to ask for the bonds, and I commenced to ask for my money.” The defendant testified that Mrs. Biddlecom “said what she wanted was to realize her money out of the bonds and do the best she could with them”; that after he signed and delivered the $4,100 note to Mrs. Biddlecom, she was to retain as collateral the trust deed and lots “because I was under the impression these deeds had been delivered”; that “She said she had an offer of $4,100 and was dissatisfied with the other transaction and wanted to step out of it. * * * It was agreeable to (me), if she was willing to accept the note in lieu of it.” The defendant also testified that he knew nothing about the escrow of the bonds until the day of trial, and that he never received any consideration for the bonds; that Mrs. Biddlecom's demand upon him was not for the return of the bonds, but for money; that he told Friedman to make arrangements with her if she was not satisfied with the transaction; “that was when she later came back and we gave her the note. * * * After I gave her the note she never asked me for the bonds; * * * When I signed the note I knew Friedman had sold the bonds,” and “Friedman was to stand the difference between the $900 and the $4,100.”

As we have stated, the complaining witness in this case delivered her bonds to defendant on August 20, 1932. She failed to institute criminal proceedings against him for conversion of those bonds until the statutory period had all but expired; the indictment by the grand jury bearing date, August 15, 1935. Meanwhile, as she herself says, she had given up any idea of securing the return of her bonds and “commenced to ask for money.” As a means toward that end she may still rely upon the defendant's promissory note secured by such collateral as she has and in addition has obtained title in entirety to the lot formerly owned jointly by herself and Robkins. She left her bonds with defendant “to trade” on August 20th. According to her testimony she asked for their return before the trade authorization was signed. By signing that instrument she showed a clear abandonment of her desire to have them returned. Later, after she had received one item of the properties mentioned, and after the others had been given to Friedman for delivery to her, according to defendant's testimony, she again asked for return of the bonds, but again apparently abandoned her claim for them when she received the $4,100 note. The defendant stated that at the time he signed that note he was under the impression that the deed to the five lots in Deer Lake Highlands had been delivered to Mrs. Biddlecom to be held as collateral for the note, together with the trust deed note for $940. As to the execution of the deed and its delivery into the hands of Friedman, he is supported by the testimony of the notary who took his acknowledgment. If Mrs. Biddlecom ever notified the defendant that she had not received the deed (and the record is silent on that), we are at a loss to understand why defendant, still retaining title, did not execute or offer to execute a new deed and hand it personally to Mrs. Biddlecom or her attorney, since it was intended finally to stand as partial security for the note.

The defendant told the court that, at the time he executed the deed, he was the owner of the lots in question. As such he was qualified to testify as to their market value. He was not permitted to do so, the court sustaining an objection to the question propounded to defendant on that subject. Appellant feels that in so ruling the trial court committed error. We do not take that view, particularly because it was not shown that Mrs. Biddlecom received a deed to the lots. She was entitled to such a deed under the trade agreement, prior to the time defendant gave her his note for $4,100. However, we are not satisfied that she did not waive her right to take that deed and decide instead to take the promissory note. And we are satisfied that the evidence shows, prima facie, that defendant, owner of the lots, executed such a deed in her favor. And, although the document signed by Mrs. Biddlecom authorizes defendant as agent to trade her bonds, she could not complain if he were in a position personally, while the authorization was in effect, to deliver the trust deed, the note and the deed to the five lots. Mrs. Biddlecom, not having received her deed to the five lots, apparently failed to ask for it, but asked for her bonds which had been sold some time previously in reliance upon the trade authorization; then, upon the same day, failing to receive the bonds, and with knowledge that they had passed out of defendant's hands, accepted a promissory note, and for a period of almost three years relied upon that to indemnify her for her loss. We feel that, under these circumstances, defendant's ownership of the five lots and action taken to pass title to them to Mrs. Biddlecom might well determine his guilt or innocence. There was no stipulation on the subject of ownership in this trial; neither was there any showing from official records of the condition of the title. In such a situation, uncertainty and doubt arises, unless the court is willing to accept the testimony that is available. In this case, the only testimony on this subject was offered by the defendant and his witness, the notary public, and was altogether favorable to him. It was not refuted by the people as it might have been, effectively, as to the title at least, if false. We cannot say, in the circumstances here present, that the evidence was sufficient to warrant a conviction.

The judgment and order are reversed, and the cause remanded for a new trial.


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