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

ROBINSON et al. v. PULS et al.


Civ. 12842.

Decided: December 20, 1945

William Berger and Abraham Setzer, both of San Francisco, for appellants. James R. Agee, Breed, Burpee & Robinson, and Lester Perry, all of Oakland, for respondent.

This action was commenced by the filing of a complaint for declaratory relief, for a decree of the court adjudging that a $7000 note given by plaintiffs, who are husband and wife, to decedent Fred Puls, and secured by a deed of trust, was obtained by fraud and without consideration and to have the same cancelled, for similar relief with regard to a $2000 promissory note secured by a chattel mortgage, for an accounting and for a money judgment in favor of plaintiffs. Defendant filed a cross-complaint on the $2000 note and chattel mortgage and for a money judgment against plaintiff George Robinson on two book accounts, one for merchandise sold and the other for money advanced. During the trial the defendant dismissed the count on the $2000 note and chattel mortgage with prejudice.

Judgment went against plaintiffs on their complaint and in favor of defendant on the two counts based on the book accounts.

It was appellants' theory that decedent Puls and appellant George Robinson had entered into a partnership for the purchase and drying of fruit, that decedent had agreed to advance $7000 as capital to be matched by $7000 advanced by appellant George Robinson, that the $7000 note and deed of trust were to cover Robinson's share of the capital, but that in fact decedent had never put any money into the enterprise either for himself or for Robinson and in consequence Robinson had received nothing for his note. Appellants also claimed a balance owing from decedent arising from decedent's handling of George Robinson's money.

Respondent denied any agreement for a partnership, asserted that the notes were given for money advanced to George Robinson by decedent, and claimed a balance due as shown by the decedent's books of account. Except for the $2000 note and chattel mortgage securing it all issues were decided against appellants and in respondent's favor. It was undisputed that for many years decedent had acted in the capacity of private banker for George Robinson, receiving money from him and disbursing it on his order.

At the outset appellants contend that the court erred in denying their demand for a jury trial. The clerk's transcript shows that appellants filed a written demand on December 7, 1942, for ‘a trial of the above entitled cause by the above entitled Court, sitting with a jury.’ It further shows a minute order of the same date setting the cause for trial without a jury. This minute order contains the following recitals: ‘Counsel for Plaintiffs move this Court to amend their demand for trial by jury on its face, and said Motion is denied and counsel for Plaintiff move this Court for a trial by jury, and said motion is denied.’ The record fails to show the particular in which counsel for appellants asked leave to amend their demand for a jury trial, except by certain affidavits filed by counsel for the respective parties on motion for new trial. An affidavit of one of counsel for appellants states that on December 7, 1942, when this case was called for setting counsel filed their written demand and ‘moved the court * * * for a jury trial of said cause which demand and motion were refused and denied respectively, the Court stating that said written demand for a jury was defective in failing to state the issues to which said demand related.

‘That affiant * * * thereupon moved the Court for its order permitting the amendment of said Demand upon its face to comply with the expressed views of the Court as aforesaid, but without prejudice and without admission of the inadequacy of said Demand, which motion said Court did then and there deny.

‘That affiant * * * thereupon moved said Court for a continuance * * * to enable the plaintiffs and cross-defendant to serve and file a formal amended and elaborated Demand for Jury Trial in accordance with and in compliance with said Court's ruling * * * which motion was likewise denied by the court.’

The affidavit of counsel for respondent avers that on December 7, 1942, the appellants' demand for a jury was denied ‘upon the stated ground that the demand * * * was general and that the action involved both legal and equitable issues, and that the demand was therefore insufficient because it did not distinguish between such legal issues; that thereafter said counsel for plaintiffs and cross-defendant orally requested permission to amend said demand but did not state what the said proposed amendments were nor did said counsel at that time or at any other time or any subsequent time ever present to any department of the above entitled Court any demand for a trial upon the legal issues involved in said action.’

Upon the trial date counsel again orally demanded ‘a jury trial’ before the presiding judge and at the opening of the trial stated that ‘As we proceed to trial at this time we simply want the record to show we have not waived our demand for trial by jury.’

Where an action involves both legal and equitable issues any party is entitled to a trial by jury of the legal issues. Connell v. Bowes, 19 Cal.2d 870, 123 P.2d 456; Crouser v. Boice, 51 Cal.App.2d 198, 124 P.2d 358; Hutchason v. Marks, 54 Cal.App.2d 113, 128 P.2d 573. However in such an action, involving issues both legal and equitable, it has been held that a general demand for a jury trial of the entire action is insufficient and the denial of such a general demand is not error (Meek v. De Latour, 2 Cal.App. 261, 83 P. 300; Whittier v. Auth, 99 Cal.App. 759, 279 P. 491), and the same rule has been generally followed in other jurisdictions where the question has arisen (35 C.J. 217 and cases cited in notes 94 and 95). We must assume in support of the action of the trial court in setting the entire cause for trial without a jury that counsel for appellant did not single out for the court the issues which were purely legal in nature and move the court for a jury trial on those issues alone. It nowhere appears from the record that they did so and it affirmatively appears from the affidavit of counsel for respondent from which we have quoted that they did not.

Section 631 Code of Civil Procedure provides:

‘Trial by jury may be waived by the several parties to an issue of fact in manner following: * * *

‘4. By failing to announce that a jury is required, at the time the cause is first set upon the trial calendar if it be set upon notice * * *.’

The announcement required by this section must be made at the time the cause is first set for trial (Mutual Bldg. & Loan Ass'n v. Corum, 220 Cal. 282, 30 P.2d 509) and if the announcement is not made to the court at the time of such setting the waiver provided for by Code Civ.Proc. sec. 631, subd. 4 results. Stern v. Hillman, 115 Cal.App. 156, 159, 300 P. 972. Counsel for appellants should have been prepared to make the proper demand at the time of setting, instead of which they asked leave to amend their written demand without specifying the particulars of their proposed amendment. No demand, so far as the record shows, was either made or suggested for the trial of any particular issue or issues by a jury so that the trial court could then determine, or we can now determine, whether on the particular issue or issues, the court should have allowed a jury trial. Where the case involves both legal and equitable issues the trial court should be specifically pointed to the particular issues as to which a jury trial is demanded so that the judge may then determine whether the designated issues are legal or equitable. The burden should be on counsel to make the designation, and not upon the court to search the pleadings and cull out for counsel the legal from the equitable issues.

The argument that sec. 631, subd. 4, Code Civ.Proc., in a case involving both legal and equitable issues, requires no more than a general announcement that a jury trial is required does not impress us. The section provides that: ‘Trial by jury may be waived * * * to an issue of fact * * *: * * * By failing to announce that a jury is required * * *.’ The italicized words are consistent with the requirement that where some, but not all, of the issues are legal the failure to designate the legal ‘issues of fact’ and announce ‘that a jury is required’ for the trial of those issues accomplishes the waiver therein specified.

That certain of the issues presented by the complaint were equitable is obvious. We single out the relief sought by the cancellation of the two secured promissory notes. 4 Cal.Jur. 795 and cases cited in notes 2 and 3.

Upon the showing made by the record before us no error is shown in the denial of a jury trial.

Certain account books of the decedent Puls were introduced into evidence over the objection of the appellants that ‘there is no showing, no proper foundation laid that the entries therein contained were made contemporaneously with the items appearing therein.’ There was testimony that these books were the books kept by the decedent in his place of business and the administratrix testified that they were found by her after the decedent's death among his effects and that the entries are in his handwriting. In the case of books kept by a person still living and available as a witness it is settled in this state that one of the items of foundational proof for the admission of such books is ‘that the entries * * * were made at the time or within reasonable proximity to the time, of the respective transactions.’ Chan Kiu Sing v. Gordon, 171 Cal. 28, 31, 151 P. 657.

In O'Neill v. O'Neill, 45 Cal.App. 772, 774, 188 P. 603, the court held that a sufficient foundation was laid for the introduction of the book of a decedent by proof that the entries were in the handwriting of the decedent and that he kept correct books, although the witness testified that he had never seen the particular book before. The case has never since been cited to this point and we have found no later decision in California on the precise question. The rule is thus stated in 32 C.J.S., Evidence, § 684, p. 557:

‘Under ordinary circumstances mere proof of handwriting is not sufficient to admit books of account, but the books must be supported by the suppletory oath of the party by whom the entries were made. The circumstances may, however, be such as to render it proper to admit the books on mere proof of handwriting, without the suppletory oath of the person by whom the entries were made. Thus the books of account of a deceased person are competent evidence in favor of his executor or administrator if supported by the oath of the personal representative, or if they [be] proved by a competent witness to be in decedent's handwriting; and a similar rule is applied where the party since making the charges has become insane, the books being offered by his guardian.’

In Foster v. Wehr, 114 Pa.Super. 101, 173 A. 712, at page 714, the court quotes from Hoover v. Gehr, 62 Pa. 136, 138:

‘The book of a decedent appearing on its face to contain charges of merchandise sold and delivered, is admissible in evidence on proof of his handwriting alone. It is not necessary to accompany it with any evidence as to the time and manner in which the entries were made. This would generally be impossible from the death of the only party having any knowledge of the matter. The presumption, prima facie, is, that the book of a decedent was regularly kept as a record of his daily transactions. If testimony is subsequently introduced which raises any question upon the subject, it is for the jury to determine, under proper instructions from the court.’

See to the same effect: Davie v. Lloyd, 38 Colo. 250, 88 P. 446; Dicken v. Winters, 169 Pa. 126, 32 A. 289; Robinson v. Dibble's Administrator, 17 Fla. 457; Gain v. Campbell's Adm'x, 265 Ky. 843, 98 S.W.2d 17; Burton v. Phillips, 161 Ala. 664, 49 So. 848; New Haven & Northampton Co. v. Goodwin, 42 Conn. 230; Odell v. Culbert, 9 Watts & S., Pa., 66, 42 Am.Dec. 317.

The rule is not uniform throughout the United States. (See 20 Am.Jur. 930, where the statement is made concerning the books of a decedent that: ‘It must be shown * * * that they were made * * * at or near the time of the transaction recorded,’ the contrary rule being stated in the same section on page 929 in the following language: ‘Moreover, it is not necessary to accompany such books with any evidence as to the time and manner in which the entries were made.’) The tendency has been to enlarge the use of business records in evidence (see the discussion of the purpose of the ‘Uniform Business Records as Evidence Act,’ Code Civ.Proc. secs. 1953e–1953h, in Loper v. Morrison, 23 Cal.2d 600, 608, 609, 145 P.2d 1), and we are satisfied to follow the rule permitting the introduction of the books of account of a deceased person into evidence on proof that they are in his own handwriting without requiring the additional foundational proof of the times at which the entries were made, the weight of such evidence being left to the trier of the facts.

It is further objected that the books were not clear on their face and were only explained in some cases by reference to other documents. The books were examined by an accountant who testified that ‘they were kept in an orderly manner, certainly not in a modern up-to-date accounting procedure such as a system that would be installed today, but in a manner common to the generation of people and merchants who did business before income tax and other things brought them up-to-date with accounting methods.’ Certain entries showed payments to ‘self.’ It was established by comparison with orders drawn on the decedent by appellant George Robinson, and found among decedent's effects, that ‘self’ in these entries indicated payments to Robinson's order and not to the decedent. While these entries were ambiguous on their face, the supporting documents made their meaning clear. ‘The fact that some parol testimony is necessary in order to fully explain an account will not make it insufficient to be put in evidence.’ 20 Am.Jur. 907, 908.

Appellant George Robinson testified that the decedent kept two sets of books covering the account of their transactions, a false account being entered in the books produced in court and a correct account being kept in another book not produced, the purpose being to deceive creditors of Robinson by the false entries in the books produced. Other witnesses corroborated Robinson to the extent of describing the book in which decedent kept Robinson's account as being a different book in outward appearance and size from any produced in court. The administratrix testified that the found no such book among decedent's effects. Proof of fraudulent conduct must be clear and convincing (12 Cal.Jur. 832) and it was for the trial court to weigh the evidence on this subject. We cannot hold that its determination against the existence of the claimed ‘secret book’ was error.

Appellant produced in court a document purporting to be a receipt signed by decedent Puls for ‘Deed of Trust and Note of $7000 to apply on Partnership agreement.’ The body of the receipt was admittedly in the handwriting of Robinson and the administratrix testified that the signature was not that of the decedent. After judgment had been entered the court on motion for new trial ordered ‘that in lieu of a New Trial, Judgment and Findings be and the same are set aside, and said action is reopened for further proceedings on the sole issue as to the genuineness of Plaintiffs and Cross-Defendants Exhibit #9 in evidence’ (the disputed receipt). This order further recites the stipulation of the parties to the appointment by the court of a handwriting expert, the expenses to be borne equally by the parties. A subsequent minute order recites a stipulation that the questioned receipt and other exhibits chosen by the parties as exemplars shall be submitted to Clark Sellers for analysis and report and that ‘said Clark Sellers may submit his written finding to the Court without personal appearance.’ Later the written report of Clark Sellers finding the signature not genuine was received and admitted. Appellants' counsel demanded the right to cross-examine Sellers. The failure to grant this demand was not error. Counsel by stipulating that ‘Clark Sellers may submit his written findings * * * without personal appearance’ waived the right of cross-examination. Their request to produce other evidence was likewise properly denied, the case having been reopened for the single purpose of securing the opinion of an expert to be chosen by the court on the genuineness of the signature to the questioned receipt.

Appellants complain that the court failed to make any declaration concerning the rights and duties of the parties, in response to their prayer for declaratory relief. The count of the cross-complaint on the $2000 note and chattel mortgage was dismissed with prejudice during the trial and the court so expressly found. All of the other issues were expressly decided against appellants, the court finding that the $7000 note and deed of trust were a valid and subsisting obligation and that appellant George Robinson was indebted to the respondent on two open book accounts in the amounts determined. There were no issues on which a declaratory judgment was necessary or proper, since all the rights and claims between the parties were merged in and settled by the judgment rendered, and all of the issues presented by the pleadings will become res adjudicata when the judgment becomes final.

Several of the findings are attacked as not supported by the evidence. The finding that the $7000 note and deed of trust were given for value received is supported by the presumption of a valuable consideration. The burden of proof was on appellants to rebut this presumption and the court chose not to believe their evidence. There was ample evidence that the disputed receipt above discussed was a forgery, and if that was true the appellant George Robinson who produced and vouched for it was thereby impeached and his other testimony was thereby discredited to the extent that the trial judge refused to believe it. Estate of Friedman, 178 Cal. 27, 32, 172 P. 140; Code Civ.Proc. § 2061, subd. 3.

The judgment for respondent on the book accounts was supported by the book entries. Appellant George Robinson produced a document in his own handwriting which he testified was a copy of a will that decedent had written in his presence containing an admission that decedent was indebted to Ribonson in the sum of $7148. This testimony was evidently disbelieved by the trial court and we are bound by the trial judge's determination on conflicting evidence.

Other matters argued either depend on the weighing of conflicting evidence or are not sufficiently substantial to justify our extending this opinion to consider them in detail.

The judgment is affirmed.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.

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