Brown v. World Church

May 9, 1969

Civ. 32860

Versions:

FOURT, Acting P. J.

This is an appeal from a plaintiff’s judgment for money.

Williе Mae Brown, a widow of 78 years of age, caused to be filed her complaint (February 19, 1965) against the named defendants wherein she alleged among othеr things that on June 21, 1955, The World Church (Sometimes hereafter referred to as Church) by and through its president, O. L. daggers, executed its promissory note by the terms of which the Church рromised to pay Margie W. Fain or Willie Mae Brown, or their order on June 21, 1957, the sum of $5,256.67 with interest at 6 percent per annum. Further, that plaintiff had only received the sum of $315.40 as interest and she was entitled to the principal sum plus interest from dime 21, 1956, that she by virtue of the death of Margie W. Fain in 1959 was the holder and owner of the note, that plaintiff was a widow 75 years of age, a member of the Church and had attended religious services at the Church since its inception in 1952 up to June 15, 1964, and O. L. daggеrs as president and minister of the Church had been her personal minister and pastor. Further that O. L. daggers and David B. daggers acting individually and as officers of the Church rеpresented to plaintiff that she should not worry with reference to the note, that she could rely upon the Church to pay the note and that she should not consult a lawyer to collect the note, that each of the daggers personally guaranteed payment of the note, that they were holding money in trust with which the note would ultimately be honored without any legal action for collection even though the statute of limitations might become applicаble, that if any person sued it would become a sin against the Church and that she should believe her ministers. Further, that each of the defendants was the agent of the other defendants in all of their respective actions, that plaintiff up to June 15, 1964, believed, trusted and relied upon each of the defendants in all reрresentations and thereby did not file the present action until February 19,1965.

Defendants filed an answer to the complaint on June 14, 1965, wherein they generally denied all of the allegations of the complaint and affirmatively alleged “That the complaint on file herein and the alleged cause of action thеrein set forth is barred by the provisions of Section 337 of the Code of Civil Procedure of the State of California. ’ ’

The cause came on for trial on July 11 and July 12, 1967, before an experienced and learned judge. After hearing the plaintiff and her witnesses and the almost incredible testimony of O. L. daggers and other defеndants’ witnesses the judge directed a judgment in favor of plaintiff and ordered findings. Extensive findings 1 were submitted, signed and filed.

A judgment was made and entered in conformity with the findings ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and conclusions of law. A timely notice of appeal was filed.

Appellants in their opening brief contend that the statute of frauds barred the action and in effect that the evidence does not support the findings and the judgment. There is no merit to appellants ’ contentions.

This court is again called upon to state a rule which should be familiar, namely, ". . . the findings of fact of a trial cоurt on conflicting evidence of a substantial character are conclusive, and ... an appellate court cannot examine the reсord to ascertain if the findings are supported by a preponderance of the evidence” and further "... the rule is well established that a reviewing cоurt starts with the presumption that the record contains evidence to sustain every finding of fact, Accordingly, if as appellants contend, some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unlеss this is done the error assigned is deemed to be waived. [Citations.] ” (Kruckow v. Lesser, 111 Cal.App.2d 198, 200 [244 P.2d 19].)

Here appellants have made no effort to comply with the rules of court and havе failed to set forth the evidence of the matter under consideration. What is said in Hickson v. Thielman, 147 Cal.App.2d 11, 14, 15 [304 P.2d 122], is particularly appropriate: "The first contention of defendаnts is that the findings are unsupported by the evidence. In this connection, we repeat what every lawyer should know, namely, that when an appellant urges the insufficiency of the evidence to support the findings it is his duty ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.

". . . . Appellants have made no attempt to make a fair statement, or, indeed, anything approaching a fair statement of the evidence claimed to he insufficient. Their failure to do so will be deemed tantamount to a concession that the evidence supports the findings. [Citations.] ”

Or as aptly stated in Simon v. Simon, 260 Cal.App.2d 626, 631 [67 Cal.Rptr. 317]: " With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; . . .’ [Citations.] Moreover, it is incumbent upon the appellant who contеnds that the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍evidence is insufficient to set forth the evidence in support of the judgment and indicate wherein it is insufficient. ’ ’

Appellants complain of errors in the record and then fail to refer this court to the specific places in the record where any such claimed error occurred and fail to рoint how or in what manner appellants were prejudiced thereby. If counsel is neglectful in their duty it is not the burden of this court to act as counsel for either party and we will not assume the task of making a search for error. (See Fox v. Erickson, 99 Cal.App.2d 740 [222 P.2d 452]; Shaw v. McCaslin, 50 Cal.App.2d 467 [123 P.2d 102].)

With reference to the plea of the statute of limitations, it is clear that appellants failed properly to plead the statute. There are two ways of making such a plea, first by alleging all of the facts showing that the aсtion is barred (Adams v. Patterson, 35 Cal. 122; Osborn v. Hopkins, 160 Cal. 501 [117 P. 519, Ann.Cas. 1913A 413]) and indicating that the lateness of the commencement of the action is being urged as a defense (Hall v. Chamberlain, 31 Cal.2d 673 [192 P.2d 759]). The second method is stated in section 458 of the Code of Civil Procedure. It is necessary for defendant who pleads the statute of limitations to specify the applicable sectiоn, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and, if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof. If he fails to do so the plea is insufficient. (See Davenport v. Stratton, 24 Cal.2d 232 [149 P.2d 4]; Overton v. White, 18 Cal.App.2d 567 [64 P.2d 758, 65 P.2d 99]; Hopkins v. Hopkins, 116 Cal.App.2d 174 [253 P.2d 723]; Horwath v. Roosevelt Hotel Co. 118 Cal.App.2d 1 [257 P.2d 56]; Frustuck v. City of Fairfax, 212 Cal.App.2d 345 [28 Cal.Rptr. 357].) Section 337 of the Cоde of Civil Procedure has two subdivisions and defendants failed to specify under which subdivision of the section they allegedly come.

However, even if the plеading defect be passed over it is clear from the evidence and findings that defendants were estopped from asserting the statute of limitations as а defense. (See Langdon v. Langdon, 47 Cal.App.2d 28 [117 P.2d 371]; Calistoga Nat. Bank v. Calistoga Vineyard Co., 7 Cal.App.2d 65 [46 P.2d 246]; United States Cas. Co. v. Industrial Acc. Com., 122 Cal.App.2d 427 [265 P.2d 35]; Berkey v. Halm, 101 Cal.App.2d 62 [224 P.2d 885].)

Appellants seemingly contend too that O. L. J aggers did not sign for or authorize the loan. The Church received the money and took all оf the benefits. The officers of a corporation may bind the corporate principal by ostensible authority, and retention of the money by the Churсh is strong evidence either of a ratification of authority by the corporate principal or of an estoppel against the corporate principal to deny the lack of authority of the corporate officers. (See Commercial Security Co. v. Modesto Drug Co., 43 Cal.App. 162 [184 P. 964]; Curtin v. Salmon River etc. Co., 141 Cal. 308 [74 P. 851, 99 Am.St.Rep. 75].)

In this case insofar as the record in this court indicatеs, none of the parties objected to the findings or conclusions of the court nor requested specific findings, we ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍must resolve all conflicts and ambiguities in the findings (if any) in support of the judgment as well as infer logical and reasonable findings in support thereof. (See Millbrae Assn. for Residential Survival v. City of Millbrae, 262 Cal.App.2d 222, 226-227 [69 Cal.Rptr. 251]; Code Civ. Proc., § 634; Auer v. Frank, 227 Cal.App.2d 396, 406 [38 Cal.Rptr. 684, 8 A.L.R.3d 1108]; Canadian Indem. Co. v. Motors Ins. Corp., 224 Cal. App.2d 8, 17 [36 Cal.Rptr. 159]; Thornton v. Stevenson, 185 Cal.App.2d 708, 715 [8 Cal.Rptr. 603]; Reinsch v. City of Los Angeles, 243 Cal.App.2d 737, 746 [52 Cal.Rptr. 613]; People v. Coit Ranch, Inc., 204 Cal.App.2d 52, 64-65 [21 Cal.Rptr. 875]; Schaefer v. Berinstein, 180 Cal.App.2d 107, 124-125 [4 Cal.Rptr. 236].)

Appellants also mention that the original notе was not produced and only a copy was received in evidence. The Evidence Code provides for the very contingency which occurred in this ease and a copy of the note was properly received. (See Evid. Code, §1501.)

The evidence and the facts support the findings and the findings support the judgment.

The judgment is affirmed.

Lillie, J., and Thompson, J., concurred.