WORK et al. v. COUNTY NAT. BANK & TRUST CO.*
The findings in this case are amply sufficient to support the judgment. The complaint is sufficient to justify the findings, and the evidence, in spite of some conflicts, is sufficient to support each and all of the findings. Certain parts of the evidence, as set forth in appellant's opening brief, would justify findings contrary in several particulars to those found by the trial court, but an examination of the evidence discloses the fact that each of the findings particularly complained of was supported by evidence both oral and documentary.
The first part of appellant's opening brief sets forth the following statement of the questions involved in this appeal:
“1. Where a complaint is for money received by defendant trustee to the use of plaintiff and an amended complaint is filed after the lapse of the statutory period of limitation, setting up an alleged cause of action in damages for breach by the defendant trustee of a trust agreement in transferring certain trust property to plaintiff's vendee before the agreed contingency to such transfer, consisting in the payment to plaintiff vendor of certain money, is such amended complaint barred by the Statute of Limitations?
“2. Where such trust agreement provides for reconveyance by trustee to vendor of such property in default of such payment, is damage for such breach by the trustee the amount due vendor from vendee?
“3. If, under the evidence, the trustee has exercised good faith and reasonable care and judgment in determining the existence of the aforesaid contingency, is the trustee liable?
“4. Is payment of less than amount claimed upon disputed demand when accompanied by statement that it is in full and when received and appropriated, a satisfaction of claim?
“5. Is judgment against vendee for unpaid balance of purchase price admissible as prima facie proof of amount of damages in suit by vendor against trustee for breach of trust agreement?
“6. Is testimony admissible against such defendant trustee of parol options on land as proof of ownership by plaintiffs affecting description and acreage of trust property?”
As to question 1, the amended complaint is based upon the same facts stated in the original complaint. The effect of the amended complaint, as amended at time of trial, was not as stated in said question. The amendments attached to the amended complaint at the time of trial were, in effect, nothing more than conclusions of law based on the facts as set out in the complaint and the amended complaint. The amended complaint to which such amendments were attached was merely a more detailed and definite statement of the facts set out in the original complaint, to wit: A statement of account for moneys due to plaintiffs by reason of the default of the defendant in not paying to the plaintiffs, as beneficiaries of the trust assumed by defendant, the amount due to plaintiffs by reason of a failure of the defendant to carry out its trust as expressed in the trust agreement. Therefore, the trial court was right in finding that the statute of limitations was not a bar to the second count of the amended complaint.
As to question No. 2, the breach by the trustee of the conditions of the trust, and the facts and circumstances constituting such breach, as found by the trial court, would be sufficient to justify the finding as to such breach and the judgment in the amount found by the court. As stated by respondent: “* * * this is simply a case of a trustee taking over the title to a large tract of land upon certain trusts, which required it to account to the owners for its value as fixed in an option to purchase, and then disposing of the trust property in violation of its trust, and under circumstances which left the owners short of the amount of money they were to receive.” For this amount the trustee must account, and the trial court so found.
As to the third question, it is not involved here, as there were in evidence before the trial court no such facts as stated therein.
As to the fourth question, an accord and satisfaction of the claim could not be obtained by a trustee when it failed to disclose in its statement–which it claimed was in full–the facts upon which the plea of accord and satisfaction must have rested. The statement of account, so called, did not show the details as to the conveyance by the trustee of property that was to be held in trust by it, and not to be conveyed until the last of the property was conveyed to it, and at the time of the payments and statements of account relied on to state an account, it was known to all the parties that the actual acreage was not then exactly settled or determined. Regardless of these questions raised, the money that was paid to plaintiffs was the property of the plaintiffs and they were entitled to the payment in full of the amount paid, without being subjected thereby to the rule of accord and satisfaction.
Some of the points raised by appellant are answered by the reasons given for the decision in the case of Work v. Associated Almond Growers of Paso Robles, 102 Cal. App. 232, 282 P. 965.
In order to obtain the inclusion in the judgment of a provision that the settlement or payment obtained in the case of Work v. Associated Almond Growers, supra, should satisfy the judgment herein, or that the payment of the judgment herein would satisfy the judgment of the cited case, it was necessary to introduce into evidence the judgment roll in the cited case.
The objections of the appellant to the sufficiency of the evidence to support certain findings are supported by appellant in each instance by a statement of only part of the evidence and by the omission of evidence which was sufficient to support the findings objected to. That is especially so in the concluding portion of appellant's brief in which it is claimed that there was no evidence to support finding No. VII as to some of the acreage which appellant claims was not known to any of the parties at the time of the execution of the trust agreement. It was acreage which was taken possession of by the Associated Almond Growers. Buildings were torn down on a portion of it by the Associated Almond Growers, improvements were made, or at least changes were made in the character of the planting of the land, and it was treated at all times by the Associated Almond Growers as being included in the land held in this trust. As to finding No. VIII, the objection made in the following form: “That the defendant has fully executed and performed its trust and that Finding VIII to the contrary is not supported by the evidence,” is without merit. There is ample evidence to support the whole of said finding, in that the said trust company did not carry out its trust in the various particulars, as found by the trial court. The inclusion in certain findings of certain conclusions of law does not constitute reversible error. There is sufficient evidence to justify the finding of damage generally objected to which is known as finding No. IX.
Nothing in the record is called to our attention by appellant that would justify a reversal of the judgment.
The judgment is affirmed.
I concur in the judgment.
I concur. It must be admitted that the second count of the amended complaint is different from the first complaint in some details of statement of the alleged transactions. Yet the nature of the cause of action, the foundational facts of the trust, and the failure of the trustee to perform the duties assumed by it as such trustee, are of the substance equally of both counts. The cause is of equitable jurisdiction, although the remedy happens to assume the form of a money judgment. To uphold the defendant's plea of the statute of limitations, it would be necessary to treat the second count of the amended complaint as setting up a new and separate cause of action at law, without regard to the equitable rights involved and which at all stages of the action were an essential part thereof. But the pleadings do not justify such interpretation.