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

LARSON et al. v. THORESEN et al.*

Civ. 17382.

Decided: June 26, 1950

Robert Wanamaker, Pasadena, for appellants. Lee J. Myers, Harold B. Cooper, Los Angeles, for respondents.

On August 5, 1947, the parties hereto executed a written contract which recites that John F. Thoresen, respondent herein, ‘is the owner of an enforcible written contract for the purchase of a building lot known as 1069 Bryant Road, El Monte, California, for the sum of $1,800.00, no part of which has been paid, and has erected certain partially completed buildings * * * at an outlay of $1,800.00 for labor and $135.95 for materials', and that appellant Larson ‘is desirous of obtaining a one-half interest in said property’.

It was agreed that each party ‘will immediately pay to the owner of the lot * * * $900.00 * * * and title shall be taken in the names of’ Mr. and Mrs. Larson and Mr. and Mrs. Thoresen. Appellant Larson also agreed to pay to Thoresen $817.97, ‘being one-half of the labor and materials paid for to the present time’; each party agreed to pay one-half of all unpaid bills, and ‘materials and outside labor necessary for the completion of said property’. For any labor performed by the parties in completion of the dwelling Thoresen was to receive $2.25 per hour and Larson $2.00 per hour.

The contract further provided ‘That upon the completion of said buildings, said property shall be placed on the market for sale, at a price and upon terms to be mutually agreed upon’. After payment of unpaid bills, expenses of sale, etc., ‘the remainder of the sale price shall be divided equally between the parties hereto’. The contract, which was prepared by respondents' attorney, was signed and approved by the parties and their respective wives.

It is stated in appellants' brief that ‘During the construction, respondents, including their daughter and a brother, lived in the garage, and appellants placed a bed in the front bedroom * * * where they sometimes slept. Respondent Elide Thoresen prepared meals for the parties while they were working on the house. Meals taken by appellants were paid for by them. * * * About two weeks before the house was completed, respondents caused a stove to be * * * set up in the kitchen * * * where Elide Thoresen prepared meals. * * * Appellant testified that he objected to the use of the house for living purposes.’

Appellants' brief further avers that ‘the parties agreed that it should be offered for sale at $12,000.00’; at a broker's advice, however, it was priced at $11,500.00, but no offer of that amount was ever obtained. Thereafter, the friendly relations of the parties became somewhat strained, due, as appellants allege, to respondents' use of the house, differences of opinion as to settlement of accounts, and ‘the failure of respondents to match appellants' contribution of funds to the project by $720.64’. Ultimately, appellants filed the present action for partition, rental value, damages, and attorney fees.

The ‘Appellants proceeded to trial upon the theory that the occupancy of the property by the respondents constituted a breach of the written agreement between them. Respondents contended that since the title to the property had been taken as tenants in common, the respondents had the right to remain in possession rent free. * * * Apparently the trial court accepted respondents' theory’.

No findings of fact, conclusions of law or formal judgment, were ever filed. However, at the conclusion of trial, the judge filed an ‘Opinion and Order’ in favor of the respondents, finding ‘that the principal delay (in sale of the property) has been caused by plaintiffs Larson’. The trial court ‘ordered that the parties proceed vigorously at once to sell the property at private sale, for the best price obtainable, but not for less than $9,500.00, subject to confirmation by the court; from the proceeds of which the court will allow Larson $507.56 excess of his cash advances and labor for the enterprise, over those of Thoresen, including the $25.22 for taxes paid by him, will allow for the services of Thor Thoresen the sum of $29.30, will allow incidental expenses and commission on sale, allow Thoresen $1,000.00 depreciation caused by Larson's delays, allow each side attorney's $750.00 fees, and will then divide the remaining net proceeds of the sale equally between Larson and wife, and Thoresen and wife’.

The trial court's ‘Opinion and Order’ further states: ‘There can be no allowance for rent between the parties. Their rights to possession were equal. But instead of rent it is ordered that Thoresen have the floor covering cleaned and paint the inside trim at his own expense. If the parties conclude to paint exteriors to aid a sale, the cost thereof may also be deducted from the proceeds of sale before division’. The respondents sought the dismissal of this appeal on the ground that the order appealed freom is not a final order, but such dismissal was denied.

Appellants' brief submits the argument that ‘The trial court's decision is contrary to the law and facts of the case in that it erroneously construes the contract between the parties as authorizing and permitting the occupancy of the house for residence purposes over objection of appellants and without the necessity of paying rent’. The appellants also contend that the trial court's ruling ‘in denying appellants the right to present evidence of constructive eviction and ouster of appellants by respondents was erroneous'.

It is also claimed that ‘The trial court's finding that appellants delayed and hindered a sale of the house is contrary to the evidence’, and that the award of $1,000.00 damages to appellants for depreciation caused by such delay is erroneous and contrary to law. Also complained of is, that ‘having determined that partition was necessary, the trial court was under a duty to proceed therewith by a judicial sale or other appropriate relief, and its direction that the parties conduct a sale is a wrongful withholding of the relief to which appellants are entitled’.

There is no merit to appellants' first contention that the trial court erred in permitting respondents to occupy the premises without payment of rent. ‘It is a recognized rule’, as stated in McWhorter v. McWhorter, 99 Cal.App. 293, 296, 278 P. 454, 455, ‘that one tenant may not maintain an action against his cotenant who is in sole possession of the property to recover rent for the cotenant's occupancy’. Moreover, as mentioned in respondents' brief, the record discloses evidence ‘that Thoresens' occupation * * * was for the sole purpose of protecting the interests of both parties'. Appellants' argument that the parties should be considered as ‘joint adventurers' rather than as mere joint owners, and that the contract implied ‘that the house should be sold as a new unoccupied house’, cannot be accepted as furnishing a legitimate exception to application of the rule in the instant case.

Appellants' argument that the trial court's finding to the effect that appellants delayed and hindered a sale of the house, and awearding respondents $1,000.00 for depreciation caused by such delay, is contrary to fact and law, is answered by the well-established formula of appellate procedure which provides that where the record discloses substantial evidence in support of a finding, no interference therewith is justified. The record herein reveals evidence, both documentary and testimonial in nature, which would indicate appellants' non-co-operation in effecting a sale of the property, both by way of refusal to sign broker listings and otherwise. That the evidence furnishes substantial support for the trial court's finding cannot well be doubted.

As pointed out in respondents' brief, the trial court ‘ordered the parties to carry out the terms of their contract by providing that the parties should: ‘proceed vigorously at once to sell the property at private sale, for the best price obtainable, but for not less than $9,500.00’'. The trial court also provided for a division of the proceeds to be received from such a sale, an award of damages to respondents, and the payment of equal attorney fees to each party. While it would have been desirable that formal findings and judgment be filed, the so-called ‘Opinion and Order’ entered by the trial court is definite and certain in its requirements.

Partition is a proceeding of equitable nature; the trial court was obviously a better judge of the equitable merits of the present controversy than an appellate tribunal. It cannot be said that the decision rendered herein was contrary to law, inequitable, or without evidentiary support. The record reveals no reversible error.

The order appealed from is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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