Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.


Civ. 9655.

Decided: March 25, 1935

R. Lee Chamberlain and H. H. Linney, both of San Francisco, for appellant. W. Urie Walsh and Herbert Kaufman, both of San Francisco, for respondent Bank of America. Theodore Tamba, E. T. Hall, and Richard Pausch, all of San Francisco, for respondent Commercial Casualty Ins. Co.

The plaintiff commenced an action to recover a judgment for money. She named as defendants Bank of America National Trust & Savings Association and Commercial Casualty Insurance Company. On the trial before the court sitting without a jury, after all the evidence had been received and both parties had rested, the trial court granted a motion for a nonsuit in favor of Bank of America National Trust & Savings Association, and also ordered judgment in favor of Commercial Casualty Insurance Company. The plaintiff made a motion for a new trial. Her motion was denied and she has appealed. In her complaint she alleged that she is a citizen of San Francisco; that the Bank of America National Trust & Savings Association is a corporation and is the executor of the last will and testament of A. Porta, deceased; that the Commercial Casualty Insurance Company is a corporation; that on the 2d day of January, 1932, there was issued to A. Porta a license to act as a real estate broker in the name of Progressive Realty Company, and, as a condition, A. Porta was required to file and did file with the commissioner of real estate a bond in the sum of $2,000 executed by the Commercial Casualty Insurance Company and conditioned as required by law; that the contents of the bond were as stated in the document pleaded in haec verba in the plaintiff's complaint; that on the 8th day of February, 1932, “* * * plaintiff employed” said A. Porta as a real estate agent to purchase for her certain real estate (not describing it) in San Francisco and paid to him $3,000 to enable him to make the purchase; that A. Porta did not make the purchase but converted the $3,000 to his own use; and that on the 10th day of February, 1933, plaintiff filed with the executor her claim for $3,000 which it has not allowed. The claim is not set forth in the complaint, but the answers admitted the filing thereof. As to what may be the contents, the court is not advised.

We will take up first the case as made against the Commercial Casualty Insurance Company. It contends that A. Porta could not be held on an agreement authorizing or employing him as an agent or broker to purchase or sell real estate for compensation or a commission unless the contract or some note or memorandum thereof was in writing and subscribed by the party to be charged or by his agent. Civ. Code, § 1624, subd. 5. We do not understand the plaintiff to contend to the contrary. She relies on the following facts: Commencing in 1929, she had business dealings with A. Porta. She advanced moneys to him and he advanced moneys for her account. Thereafter, on a date not appearing thereon, A. Porta signed a paper, “Received from Mrs. Francesca Halla on March 22, 1929, $2,000. Received on February 8, 1932, from Mrs. F. Halla, $1000.” The plaintiff testified when that paper was handed to her she stated to A. Porta that the matter of loaning moneys was thereupon ended and that she wanted him to buy her a house and apply those moneys to the purchase price. She further stated that he agreed to do so. Continuing, she stated that at that time no particular property had been selected and that she proceeded to examine properties and continued to do so until the 29th day of October, 1932. At about that time she testified she inspected a house at Alabama and Twentieth streets and directed A. Porta to buy it. The only evidence regarding a written contract, if any, was as follows: “He (Porta) told me the price was $3,550. I told him I couldn't pay more than $3000 because that was all the money I had. I did not have any other conversation about the house. I signed three papers about the house. He took them. I signed those papers on October 29. They were regular papers for real estate business. They were the papers they used to buy a house–a contract. I was going to buy the house from Mr. Bruzza. The papers said that I was to pay $3,250. His commission was to be $250. I was to pay the $250 by getting the rents. When I collected the rents I was to pay him.” Mr. Bruzza was called as a witness and testified that the day before Mr. Porta died he called on Mr. Bruzza to purchase the property at 847 Alabama street. Porta said that he had a lady who had given him money to buy the house. Bruzza stated that his price was $3,500. Porta said that he had a check for $3,300. They did not agree on a price and Porta said he would see him the next day. In the meantime he died. Until after Porta's death Bruzza never saw the plaintiff. There is not a particle of evidence of the execution of a writing under the terms of which the plaintiff agreed to buy and A. Porta agreed to negotiate the purchase for her of the property located at 847 Alabama street. There is not even oral testimony that such a document was ever signed by A. Porta, the party to be charged as a real estate broker. The evidence therefore is wholly insufficient. Civ. Code, § 1624, subd. 5; Code Civ. Proc. § 1973, subd. 5. Furthermore it must at all times be borne in mind that in this state it is statutory that such evidence is indispensable evidence. Code Civ. Proc. § 1967.

Section 2 of the California Real Estate Act (1 Deering's Gen. Laws 1931, Act 112, p. 25) defines a real estate broker. Section 9a of the same act requires that he furnish a bond. It further provides the condition of the bond. Such condition is not broad enough to say that it requires a real estate broker, as distinguished from other brokers, to pay his debts. The plaintiff relies on Clark v. Patterson, 213 Cal. 4, 300 P. 967, 968, 75 A. L. R. 1124. We think she has overlooked one of the important facts in that litigation. In that case the broker “made and delivered to appellant a purchaser's preliminary sales contract covering the property. * * *” Under such a set of facts no one would contend that a broker or any other agent was not liable for moneys so received and misappropriated.

We pass now to the case as made against the other defendant. As from the beginning, both counsel agreed that as to the bank the plaintiff was not entitled to testify regarding any matter or fact occurring before the death of the deceased. Four documents which indicate the payment of moneys were produced from the possession of the plaintiff and introduced. Taking up each chronologically, plaintiff's Exhibit No. 3 is a statement reciting disbursements by the decedent down to April 9, 1930, which amount to $210.44. He charges himself with “interest on $2000 at 7% from October 1, 1929 to April 1, 1930,” in the sum of $70, which left a balance due plaintiff, $140.44. He then wrote an addenda: “Received from Miss F. Halla $140.50 as payment on house.” No evidence was introduced showing what house. Plaintiff's Exhibit No. 4 is of like tenor. It shows payments by decedent of $152.19. In an addenda thereto he charged himself with “interest $35.00 from April 1 to July 1, 1930,” and wrote a self-serving declaration: “Bal. due Progressive, $117.19.” On the main document he wrote: “Paid August 12, 1930.” Plaintiff's Exhibit No. 5 is dated August 7, 1931. It shows a purchase or sale of $7,900. From its face it may be inferred it was a purchase of real estate bought subject to existing bank mortgage, and that $1,500 was paid. But by whom, plaintiff directly or by decedent for plaintiff's account? The record shows nothing to answer the question. On its face it acknowledges the receipt of $100 for expenses, but it enumerates expenses aggregating $103.10, bank interest $15, and shows a balance due Progressive Realty Company of $18.10. Then to that instrument there is an addenda: “Applied July 30 interest $35.00”; he subtracts $18.10, and the balance is $16.90. He writes, “Paid in full, A. Porta.” Paid by whom, himself or the plaintiff? The record does not show. If the interest mentioned was his interest payable to the plaintiff, the balance was properly struck, but as a receipt the document should have been signed by the plaintiff. If the interest was due decedent, he should have added instead of subtracting and the paper should have been signed by decedent. Finally, plaintiff's Exhibit No. 2 is: “Received from Mrs. Francesca Halla on March 22, 1929, $2,000.00. Received on February 8, 1932 from Mrs. Halla $1,000.00. A. Porta.” There is evidence in the record tending to show the purchase by the decedent for the plaintiff's account of two or more different pieces of real estate and of the sale of at least one piece for her account, but the record does not give the facts nor dates of any one of the transactions. On January 29, 1934, the deposition of the plaintiff was taken. In it she testified that through the decedent she bought a house at 1372 Rhode Island street for $5,200. She made that purchase four and one-half years before the date of the deposition, that is, about July 29, 1929. Mr. Ferrera became an employee of the decedent in 1930. He testified he knew the facts regarding the plaintiff's purchase through the decedent of the property at 1306 York street, but he was not asked to state the facts. Plaintiff's Exhibit 5 is dated August 7, 1931. It shows the purchase or sale of property the price of which was $7,900. It contains a detailed list of the expenses. As the purchaser usually pays such expenses, we assume the transaction was a purchase. The record does not contain any evidence giving any description of the property involved. The Rhode Island street property was sold. When and for how much the record is silent. At least one transaction, according to the exhibits, was conducted through a title company, but no representative of any title company was called as a witness. All deeds were presumptively placed of record, but such facts were not introduced in evidence. The record also discloses that from May 1, 1930, the plaintiff was indebted to the Hibernia Savings & Loan Society on a note bearing interest at $29.33 per month and that the decedent had charge of the making and did make the payments. However no representative of the bank was called as a witness and the record does not disclose what payments, if any, were made after August 7, 1930. It will be presumed that the evidence on these outstanding factors which we have just enumerated would have been against the plaintiff (Code Civ. Proc. § 1963, subd. 6) if it had been introduced. Mr. Bruzza, the owner of the property at 847 Alabama street, testified that the day before the death of the decedent the latter called on him, asked his price, and stated that decedent made the remark he had a client who had already given him money to buy the property–two or three thousand dollars–and that she had no more money. No name was mentioned. The witness had never seen the plaintiff. He had heard a woman had called and examined the property. No contract was made, but Porta said he would return the next day. He died that night. The bank called as a witness an expert who testified he had examined the books and papers of the deceased for the purpose of ascertaining how the account stood between the plaintiff and the decedent. Among other things he testified regarding the purchase of another piece of property, 1372 Rhode Island street, for the plaintiff. The record showed that the price was $5,400; that a mortgage in the sum of $3,000 was assumed, leaving a balance of $2,400. On that balance $2,000 was paid as a deposit and a check for $400. The record does not show who made the payments. The witness was unable to give the date. The same witness testified that the last-named property was later sold and on February 10, 1931, the deceased paid the plaintiff $2,032.94. As we have shown in another place, the record shows the Rhode Island street property was bought about July 29, 1929, hence the expert accountant's evidence is not helpful. The same witness testifying regarding the accounts as he found them stated that there would be a balance due the decedent of $403.31. As to this defendant, the trial court granted a motion for a nonsuit. In effect the theory of the plaintiff was that in equity and good conscience the decedent, at the time of his death, held $3,000 of her money which he should pay to her. 17 Cal. Jur. 602. She attempted to prove her case by circumstantial evidence. To do so, she was bound to meet the rule that is concisely stated in 10 Cal. Jur. 1157, as follows: “A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such nature, and so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient that they be consistent merely with that theory, for that may be true and yet they may have no tendency to prove the theory.” From the evidence above set forth the trial court could find that on March 22, 1929, the decedent received from the plaintiff $2,000. If that were all, the trial court could presume said sum was owing to the decedent. Code Civ. Proc. § 1963, subd. 7. But the evidence goes further and shows that he paid her interest to July 30, 1931; and that he received $1,000 from her on February 8, 1932. But in view of the other evidence concerning sales and purchases, receipts and disbursements, it may not be said that the “only conclusion that can fairly or reasonably be drawn” from the facts is that the decedent at the time of his death still held for the plaintiff's account the said sum of $3,000 or any part thereof. As these matters arose on a motion for a nonsuit after all of the evidence had been received, the rule governing the trial court is stated in Bannister v. Los Angeles Ry. Corp., 203 Cal. 427, at page 429, 264 P. 756, 757:

“The rule governing the power and propriety on the part of the trial judge in the matter of granting a nonsuit at the conclusion of the whole testimony in the case is clearly and correctly stated in the Matter of Estate of Caspar, 172 Cal. 147, 155 P. 631, wherein it is declared to be the rule that the right of the court to direct a verdict and the right of the court to grant a nonsuit at the conclusion of the evidence in the case are absolutely the same, and that the court may grant such a nonsuit only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such verdict were given.” Giving consideration to the entire record, including the evidence, we cannot say the trial court erred in granting the nonsuit.

The judgment appealed from is affirmed as to each defendant.


We concur: NOURSE, P. J.; SPENCE, J.