CURTIS v. TITLE GUARANTEE TRUST CO (1935)

On the record the appeal of the Title Guarantee & Trust Company is correctly decided by the District Court of Appeal.

In addition it may be said that the company dealt with the property as its own, received the money paid by the plaintiff, and the trial court properly found on the evidence that it was not true that said company had turned over to the alleged beneficiaries the money so paid. Acting as principal in the transaction and through its own agent, the defendant made no showing that its relationship of trustee, secret and undisclosed so far as the plaintiff was concerned, should relieve it from responsibility as a principal to return the money paid by reason of the fraud of its agent, especially when, so far as the record shows, it continued to retain the money paid by the plaintiff. On the facts, the case is ruled on the theory of Wedge v. Security-First National Bank, 219 Cal. 113, 25 P.(2d) 411, and Speck v. Wylie (Cal. Sup.) 36 P.(2d) 618. To limit the judgment to one against the defendant in its representative capacity only, as was done in Gist v. Security Trust & Savings Bank, 218 Cal. 581, 24 P.(2d) 153, would not be justified on the record presented.

By denying a hearing, we do not necessarily approve the apparent holding of the District Court of Appeal that laches is in every instance an affirmative defense.

The petition for hearing after decision by the District Court of Appeal is denied.

PER CURIAM.