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


Civ. 15799.

Decided: July 01, 1947

Eugene L. Wolver, of Los Angeles, for appellant. Reuben Rosensweig, of Los Angeles, for respondents.

Appellant sued to enforce a trust with respect to one-half interest in certain real and personal property for the dissolution of a partnership between himself and respondents, for an accounting of the assets and profits of the partnership, and for title to and possession of his half interest in the property. Recovery was denied him. As grounds for reversal appellant assigns: (1) want of evidential support for the findings; (2) failure to find upon all material issues; (3) inconsistency of the findings; (4) errors in rulings upon the admissibility of evidence; (5) abuse of discretion in denying appellant's motion for a continuance.

The findings are generously supported by the proof offered by respondents. Appellant having long lived with them in the relationship of son and parents, joined them in the purchase of two parcels of realty by contributing one half of the sums paid on account of one parcel and by the use of it in the purchase by respondents of another, both of which occurred prior to November, 1942. At that time he entered the army. The property purchased by all three was lot 83, tract 6084, a vacant lot on Hobart street in Los Angeles. The parcel purchased by respondents only for a home was an improved lot, number 256, tract 6084, on La Salle street. Titles to both properties were taken in the names of appellant and respondents as joint tenants. At the time of appellant's enlistment $275 was due upon the note given for lot 83. At the same time $1,300 had been paid by respondents on lot 256, the purchase price of which was $5,300, payable in monthly installments. No controversy appears to have arisen with respect to lot 83, but while appellant alleged and testified that he joined in the purchase of lot 256, respondents denied his contribution to that investment and Mr. Thomas testified that appellant paid nothing on account thereof and that the name of appellant was included in the escrow and inserted in the deed of lot 256 solely because it was necessary to use lot 83 as collateral in making the purchase of lot 256 and appellant was a part owner of the former lot. Appellant alleged and testified that at respondents' request he joined them in purchasing bedroom and kitchen furniture, paintings and stands. But this was denied, and Mr. Thomas testified that he and his wife bought practically all of the furniture, rugs and kitchen equipment; that the installment contract for such items named them as vendees; that the bedroom set and kitchen equipment were paid for by Mr. Thomas' checks: all of which was corroborated by the merchant and the contracts for the movables in question. The items purchased by appellant were removed by him at the time he quit the Thomas home in January, 1943. While appellant denied that he had ever conveyed the properties to respondents, Mr. Thomas testified that when appellant left the home it was without conversation or reason; that when he subsequently returned accompanied by his brother to announce his entry into the military service appellant stated that he desired to give the witness ‘a deed for his property rights'; that the witness thereupon had such instrument prepared and accompanied appellant to the office of John L. Currie, a notary public, who took the grantor's acknowledgment; that he caused the deed to be recorded but that it was never returned to him from the recorder's office. The notary positively identified appellant in a group photograph as one who had called at his office with Mr. Thomas, signed the deed and acknowledged the signature.

The proof is sufficient to support the findings that lot 83 was purchased in the joint names of appellant and respondents with the intention that one half of the purchase price should be paid by appellant; that lot 256 was purchased solely by respondents and that appellant's name was included in the title thereof by reason of the use of lot 83 as security for a loan to respondents and not because plaintiff had any interest in lot 256; that the deed of such lot to respondents was voluntarily executed and delivered by appellant. Further comment upon the sufficiency of the evidence to support the findings would be superogatory. See Crawford v. Southern Pacific Company, 3 Cal.2d 427, 45 P.2d 183; Herberts Laurel-Ventura, Inc., v. Laurel Ventura Holding Corporation, 58 Cal.App.2d 684, 690, 138 P.2d 43.

Appellant's contention that no finding was made upon the issue raised by his denial of respondents' declaration that on January 1, 1943, appellant by deed conveyed his interest in lot 83 to respondents and voluntarily conveyed his interest in lot 256 solely for the purpose of clearing title thereto is answered by the finding ‘that the property now solely stands in the names of Walter J. Thomas and Rose M. Thomas.’ The validity of appellant's deed to respondents was not questioned by his denial, but only whether he had ever executed such deed. The testimony of both the notary and Mr. Thomas satisfied the court that the deed was executed and delivered.

There is no such inconsistency in the findings as would warrant a reversal. The occasion for such criticism arose out of some carelessness in drafting the court's decision. The complaint is set up in three counts. Reducing the volume of the verbiage count one in substance alleges that plaintiff had long lived in the home of defendants as their son; they agreed to buy a lot together for their home; they first bought lot 83, then agreed to buy a ready-built home and purchased lot 256; that plaintiff paid one half the price thereof; while defendants assert title to both lots their claims are without right. Count two alleges that a partnership was formed to purchase real and personal property and that it acquired the two lots and some furniture; that the three contributed equally to the capital but defendants took possession of the assets and records of the partnership to the exclusion of plaintiff. Count three alleges that the parties purchased furniture for the new home and that one half of the cost thereof was paid by plaintiff; that defendants hold it as trustees for plaintiff. In making the findings on count one the court found the facts alleged in paragraphs 1 to 4 to be true. In finding on the second count it found as true the allegations of paragraphs 1 to 4. But paragraph 1 of the second count adopts the allegations of paragraph 11 of the first count which had already been found to be untrue. In finding on the third count it is said in finding I that the allegations of paragraphs 1, 2, 3 and 4 of the third count of the complaint are true. But paragraph 1 of the third count adopts paragraphs 6 and 8 of the first count which had already been found to be untrue in the findings on count one.

Notwithstanding such inconsistencies the decision contains such definite and distinct findings upon all material issues raised by the pleadings that it would be a perversion of justice to reverse the judgment merely because in executing the mechanics of preparing the findings the workman in the two instances obviously inadvertently included as true allegations which had already been determined to be untrue. By striking from the findings certain statements that are inconsistent with the evidence adopted by the court and with other positive findings the determination derived by the court will remain and it will support the judgment. Such procedure is to be commended rather than to delay the finality of litigation by a controversy over words, words, words.

Had proper diligence been exerted by appellant this issue would have been settled in the court below. The unsuccessful party in the trial court may not knowingly permit such inadvertent inconsistencies as those in the instant findings to become engrossed, that he may thereafter demand a reversal of the judgment by reason of such inconsistencies. Such conduct is on a parity with the studied silence of the barrister who allows improper remarks of adversary counsel to pass unchallenged that he may urge them on appeal as prejudicial error. The very purpose of requiring findings to be served and filed five days prior to the signing is to enable the losing party to assist in causing the decision to express the true intention of the trial judge, and where the appellant has failed to propose amendments to the findings prior to the court's signing them he is in no position to raise on appeal the contention that the findings are inconsistent. Moore v. Craig, 5 Cal.App.2d 283, 286, 42 P.2d 647; Sweet v. Hamilothoris, 84 Cal.App. 775, 782, 258 P. 652. If he fails to take such action he should present the error on his motion for a new trial, to the end that the trial court may correct such errors while the matter is before it. By disregarding as surplusage the findings which were engrossed by adoption (Morgan v. Walker, 217 Cal. 607, 610, 20 P.2d 660) the court's decision upon all of the material issues will disclose no inconsistency. Such action is consonant with section 956a, Code of Civil Procedure, and with section 4 3/434 of Article VI of the Constitution whereby in the interest of justice the appellate court is authorized to make findings either contrary, or in addition to those made by the trial court. Also, section 4 1/212, same article, forbids a reversal for ‘any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence * * * [there has been] a miscarriage of justice.’ See Code Civ.Proc. sec. 956a; Tupman v. Haberkern, 208 Cal. 256, 264, 265, 280 P. 970.

Appellant assigns as error the court's ruling in allowing respondent Thomas, over objection, to testify that appellant's name was included in the escrow and in the deed to lot 256 because it was necessary to use as collateral lot 83, in which appellant owned one-half interest, in making the purchase of lot 256. By such testimony there was no attempt to vary the terms of the deed but to explain the source of the consideration and the nature and interest of the grantees. Evidence of all the circumstances of the preparation, execution and delivery of a deed is material to the question of delivery. Van Core v. Bodner, 77 Cal.App.2d 842, ——, 176 P.2d 784.

The court did not abuse its discretion in denying a continuance of the trial. Appellant's obvious purpose was to obtain his time card from the office of his employer in order to overcome the testimony of Mr. Thomas and the notary to the effect that appellant acknowledged the deed on January 7, 1943. His argument is that ‘a reasonable continuance should have been granted so that his counsel may have contacted him and he be given an opportunity to communicate with his counsel concerning rebuttal, and if advisable, present such rebuttal.’

The authorities cited by appellant (Pacific Gas & Electric Company v. Taylor, 52 Cal.App. 307, 198 P. 651; Eckert v. Graham, 131 Cal.App. 718, 22 P.2d 44; Robinson v. El Centro Grain Company, 133 Cal.App. 567, 24 P.2d 554) do not authorize the reversal of an order denying the continuance of a case which has been brought to trial on the application of the complaining party. The evidence to be obtained by the continuance could by the exercise of reasonable diligence have been produced prior to the presentation of the motion. He contends that the continuance should have been granted ‘solely by reason of his service as a member of the armed forces.’ The courts have religiously observed the statutory rights of litigants serving in the armed forces to such delays as are thereby authorized. But neither such statute nor any decision suggests that in other respects the procedure is so modified as to operate to the advantage of a soldier and to the disadvantage of his adversary. Having alleged in his complaint the claim of respondents that the titles of the lots stood in their names only, appellant hastened the commencement of the trial upon the very ground that he was a member of the armed forces. Under the circumstances it cannot be said that the trial court abused its discretion in denying the continuance.

It is therefore ordered that the decision be modified by striking the findings on counts two and three and by substituting in lieu thereof the following: ‘As to counts two and three of the complaint, the court finds that all the allegations thereof not specifically found to be true by the foregoing findings on the first count are untrue. It appearing from the exhibits that the unimproved lot purchased by the parties is lot 83 instead of lot 84, it is ordered that from conclusion V the number 84 be and it is stricken and that the number 83 be and it is substituted in lieu thereof.’

It further appearing that the words ‘Hobart street lot’ in the last line of paragraph VI of the judgment is not a correct description of the property intended there to be specified, and that no provision is made for a reconveyance of appellant's interest in the parcel in the event of the failure of respondents to reconvey such interest, it is ordered that paragraph VI of the judgment be and it is stricken and that the following be and is substituted therefor:

‘VI. That defendants Walter J. Thomas and Rose M. Thomas are hereby directed to convey to plaintiff by a good and sufficient deed an undivided one-half interest in lot 83, tract 6084, as per map recorded in book 101, pages 53–57 of Maps in the office of the county recorder of Los Angeles county; and in the event of the failure of defendants to execute and deliver such deed within 30 days after this judgment becomes final the county clerk is hereby appointed as commissioner of this court to prepare, execute and deliver such deed pursuant to this judgment.’

As thus modified the judgment is affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur. Hearing denied; CARTER, J., dissenting.

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