FEWEL & DAWES, INC. (a Corporation), Respondent, v. FRANKLIN L. PRATT, Appellant.
L. A. No. 16070
In Bank
January 27, 1941
February 20, 1941
Therefore, in view of the pendency of the libel action out of which this proceeding arose, and in view of the unsatisfactory state of the record herein in the respects mentioned, we are of the opinion that the ends of justice will best be served and the valuable right to practice law will more effectively be guarded by a dismissal of this proceeding without prejudice, to await whatever proceedings the respondent State Bar deems appropriate upon the later determination of the libel litigation.
It is so ordered.
Edmonds, J., and Houser, J., did not participate in the consideration or decision of this matter.
A petition for a rehearing and for modification was denied February 20, 1941. Edmonds, J., and Houser, J., did not participate.
Hulen C. Callaway and Joe Crail, Jr., for Respondent.
TRAYNOR, J.—The appellant, Franklin L. Pratt, a licensed life insurance broker, had written several policies of life insurance for John G. Bullock of Los Angeles. In 1928 Bullock decided to take out additional life insurance amounting to $150,000 under an arrangement that would enable his son-in-law, Richard W. Fewel, to receive half of the commissions. Fewel was in debt to Bullock, and the latter wanted him to earn a share of the commissions so that he could meet his obligations. On July 10, 1928, Pratt and Fewel met in Bullock‘s office to make arrangements for working together. Pratt refused to work with Fewel‘s associates and insisted that the agreement be with Fewel alone. Fewel maintained that he could not work without his associates. When they finally agreed to work together and to divide the commissions so earned, they went to the office of Pratt who executed the following writing:
July 10, 1928
Mr. Richard W. Fewel,
716 South Spring St.,
Los Angeles.
Dear Mr. Fewel:
This is to confirm our verbal understanding of this date that we will work together in the purchase of insurance for Mr. John G. Bullock, on the basis of an equal division of the commissions.
Very truly yours,
F. L. P.
Neither at that time nor since was Fewel licensed as an insurance broker or agent. At the time of the agreement, however, he was planning to organize a corporation to carry on an insurance business. His plans materialized with the incorporation of Moore, Fewel & Company on July 30, 1928, which was duly licensed as an insurance broker on August 10, 1928. On September 1, 1928, Fewel, an officer and director of this company, assigned to it his interest in the agreement with Pratt. The company subsequently assigned its rights under the contract to its successor, Moore, Fewel & Devlin, Inc., which in turn assigned them to Moore, Fewel & Dawes. The latter subsequently changed its name to Fewel & Dawes, respondent herein. Richard W. Fewel has been at all times an officer of these corporations.
None of the life insurance policies contemplated by this agreement was secured until 1930. In 1930, 1931, and 1932, Pratt wrote various life insurance policies for Bullock with the cooperation of Fewel. On July 31, 1930, Pratt and Fewel made their first division of commissions. Pratt objected that the payment of commissions to Fewel would be illegal because the latter had no license. It was therefore agreed that Fewel should issue a receipt signed “Moore, Fewel & Devlin by Richard W. Fewel” to enable Pratt to show a legal transaction on his books. Pratt made out his check for the commissions to Fewel personally. Fewel deposited the check in his private account which he alone used. Other commissions were subsequently divided in the same manner, the last division being made on February 19, 1931. On September 15, 1933, John G. Bullock died. On December 15, 1935, Fewel & Dawes, the last assignee of Fewel‘s right to commissions under the agreement with Pratt, brought suit against Pratt for unpaid commissions. The trial court gave judgment for plaintiff, and defendant Pratt has appealed.
The trial court found that Fewel was acting on behalf of the corporation Moore, Fewel & Company in making the agreement with Pratt. There is, however, no substantial evidence that Pratt agreed to contract with an actual or contemplated corporation rather than with Fewel. Plaintiff has failed to sustain the burden of proving that Pratt gave the assent necessary to the completion of such a contract. On the contrary, it is undisputed that Pratt repeatedly insisted he would
A finding of the trial court upon conflicting evidence will not be disturbed on appeal if there is evidence of a substantial character which reasonably supports the judgment. (Herbert v. Lankershim, 9 Cal. (2d) 409 [71 Pac. (2d) 220]; Reese v. Smith, 9 Cal. (2d) 324 [70 Pac. (2d) 933]; Tobias v. Adams, 201 Cal. 689 [258 Pac. 588]; Lefrooth v. Prentice, 202 Cal. 215 [259 Pac. 947]; Thoreau v. Industrial Accident Commission, 120 Cal. App. 67 [7 Pac. (2d) 767]; Gamberg v. Industrial Accident Commission, 138 Cal. App. 424 [32 Pac. (2d) 413]; Gardiner v. Holcomb, 82 Cal. App. 342 [255 Pac. 523]; Houghton v. Loma Prieta Lumber Co., 152 Cal. 574 [93 Pac. 377]; Field v. Shorb, 99 Cal. 661 [34 Pac. 504]; Felsenthal v. Warring, 40 Cal. App. 119 [180 Pac. 67]; White v. Greenwood, 52 Cal. App. 737 [199 Pac. 1095]; Elliott v. Market Street Ry. Co., 4 Cal. App. (2d) 292 [40 Pac. (2d) 547].) If, however, the evidence is so slight and tenuous that it does not create a real and substantial conflict the finding may be set aside. (Ibid.) “There must be more than a conflict of words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reasonably supports the judgment. . . .” (Herbert v. Lankershim, supra.)
In the present case the only evidence in the entire record which tends to indicate that Pratt agreed to contract with Fewel on behalf of the corporation is the following statement by Fewel: “He said ‘I don‘t want to do business with the corporation, but I will do business through your corporation with you.‘” This statement, in itself contradictory and ambiguous, appears in the course of testimony by Fewel that Pratt insisted he would not do business with the corporation but only with Fewel personally. Nowhere
It is well established in California that a contract which requires the performance of unlawful acts is unenforceable. (
“Know all men by these presents: That I, Richard W. Fewel, of Los Angeles, California, for a valuable consideration, the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer and set over unto Moore, Fewel & Company its successors and assigns, all my right, title and interest in and to any and all commissions and renewal commissions for life insurance policies written on the life of John G. Bullock and accruing to me under and by virtue of an agreement between Franklin L. Pratt and myself, providing for the payment of one-half of said commissions to me. September 1, 1928.
“(Signed) RICHARD W. FEWEL.”
The wording of the assignment clearly indicates that Fewel was merely transferring to the corporation the right to receive payments of money in return for a valuable consideration. There is no assumption of obligations by the corporation. There is no novation effected whereby the corporation steps into Fewel‘s shoes as obligor under the contract. The obligations of the agreement remained with Fewel; he performed them, and it was his performance of them without a license which rendered the contract illegal.
The assignment clearly states that the contract was between Fewel as an individual and Pratt. No assignment of rights would have been necessary had Fewel made the contract on behalf of the corporation, for the latter could then simply have adopted the contract as its own. (Ballantine, Private Corporations, sec. 47.)
Pratt is not estopped from denying the validity of his contract with Fewel because he accepted receipts from Fewel in the name of the corporation to conceal the illegality of the transaction. An illegal contract cannot be ratified, and no person can be estopped from denying its validity. (Colby v. Title Ins. & Tr. Co., 160 Cal. 632 [117 Pac. 913, Ann. Cas. 1913A, 515, 35 L. R. A. (N. S.) 813]; Reno v. American Ice Machine Co., 72 Cal. App. 409 [237 Pac. 784]; Wood v. Imperial Irr. Dist., 216 Cal. 748 [17 Pac. (2d) 128]; Regan v. Albin, 219 Cal. 357 [26 Pac. (2d) 475]; A. L. I. Restatement, Contracts, secs. 590, 598.)
Defendant in his answer denied any liability under the contract. He introduced evidence at the trial showing that Fewel was at no time a licensed agent or broker. He moved in the trial court to vacate the judgment and to have judgment entered in his favor on the ground that the contract was illegal and hence unenforceable. In his brief on appeal he urged the illegality of the contract as grounds for reversal. There is therefore no basis for precluding him from raising the question of illegality on appeal. If the contract is illegal as a matter of law, this court may refuse to enforce it regardless of the pleadings of the parties. (Morey v. Paladini, 187 Cal. 727 [203 Pac. 760]; Pacific Wharf etc. Co. v. Standard Am. Dredging Co., 184 Cal. 21 [192 Pac. 847]; Endicott v. Rosenthal, 216 Cal. 721 [16 Pac. (2d) 673]; Kreamer v. Earl, 91 Cal. 112 [27 Pac. 735]; Dean v. McNerney, 91 Cal. App. 206 [266 Pac. 975]; 6 Cal. Jur. 162; 4 Cal. Jur. Supp. 71, 72.)
The judgment of the trial court is reversed.
Edmonds, J., Gibson, C. J., and Houser, J., concurred.
CARTER, J., Dissenting.—I dissent.
I cannot agree with the conclusion reached in the opinion prepared by Mr. Justice Traynor for the reason that it is predicated upon an incorrect statement of the facts of this case as they appear in the record and as found by the trial court, and the rules of law relied upon in said opinion are not applicable to the factual situation as disclosed by the record and determined by the findings of the trial court.
In my opinion the judgment should be affirmed with the modifications hereinafter mentioned.
As a correct understanding of the facts is essential to the solution of every legal problem, I will state the facts of this case as they appear in the record and as found by the trial court. They are as follows:
During the early part of the year 1928, Richard W. Fewel was a partner in an insurance brokerage firm known as “Universal Underwriters.” Fewel was married to John G. Bullock‘s daughter. Pratt approached Fewel around the 10th day of July, 1928, and suggested that between the two of them they could sell Bullock some additional life insur-
Fewel informed Pratt at the time the contract was made of his intention to organize a new corporation to take over his insurance business and that the Bullock life insurance would be handled through the new company, although it would have his personal attention.
During the years 1930, 1931 and 1932, considerable insurance was written on the life of John G. Bullock, resulting in the collection by the defendant Pratt of commissions amounting to $23,074.29. It was part of the arrangement between the parties that Pratt would keep the records, collect the premiums and account to the plaintiff and its assignors for the commissions.
John G. Bullock died September 15, 1933. Prior to his death Bullock was unable to pay all the premiums on a large amount of life insurance purchased through Pratt and the respondent‘s assignors after the agreement was entered into. An arrangement was made between Pratt and the respondent‘s assignors whereby certain portions of the commissions earned would be advanced to Bullock and used in keeping the insurance in force.
At the time of Bullock‘s death there was $4,150.83 due Pratt and the respondent on account of the advances so made,
Prior thereto Pratt made a division of commissions, and the sum of $2,687.75 was paid to respondent‘s assignors and receipted therefor by Moore, Fewel & Devlin, Inc., Ltd., to Pratt. No other amount was ever paid to the respondent, or its assignors. Pratt was not required to account for the commissions prior to Bullock‘s death for the reason that Fewel knew a large portion thereof was being advanced back to Bullock in order to enable him to pay premiums. After Bullock‘s death and up to the time of institution of the action Pratt refused to account for the reason, among others, that all of the commissions had not been collected.
At the conclusion of the trial, the trial court found “that the contract was made by Richard W. Fewel as an officer and agent of Moore, Fewel & Company and was subsequently performed by him as an officer and agent of the other corporations owning it under the respective assignments.”
The trial court further found “that at all times during the performance of the contract the respondent and its corporate predecessors in title thereto were duly licensed insurance brokers and entitled to one-half of the commissions derived from insurance written on the life of John G. Bullock after the date of the contract; that an accounting was had in open court wherein it was determined that the gross amount of commissions was $23,074.29; and that after crediting the amounts theretofore paid by Pratt to respondent‘s assignor, there was due the plaintiff herein from Pratt the sum of $8,849.39 as its share of said commissions.” The court found against the appellant Pratt on all of his defenses.
The trial court further found “that the appellant Pratt ratified the assignment of the agreement by accepting receipts from a subsequent assignee, Moore, Fewel & Devlin, Inc., Ltd.”
Judgment was entered in favor of plaintiff for the sum of $8,849.39, with interest in addition thereto amounting to $1993.30.
The first attempt by the defendant to assert the illegality of the agreement of July 10, 1928, was on a motion to vacate
It is not true as stated in the majority opinion that:
“There is no substantial evidence that Pratt agreed to contract with an actual or contemplated corporation rather than with Fewel. Plaintiff has failed to sustain the burden of proving that Pratt gave the assent necessary to the completion of such a contract. On the contrary, it is undisputed that Pratt repeatedly insisted he would not work with Fewel‘s associates and would enter into a contract only with Fewel individually. Fewel‘s statement that he could not work without his associates in no way establishes that Pratt contracted with Fewel and his associates as a corporation.”
In making the foregoing statement, the author of the majority opinion has disregarded the findings of the trial court which found the facts directly in conflict with said statement. These findings are supported by substantial evidence in the form of testimony of witnesses and inferences which the trial court was justified in drawing from the testimony and conduct of the parties.
So that there will be no question as to the testimony upon which the foregoing statement is based, I will quote the testimony of the witnesses verbatim. Fewel testified as follows:
“A. I will say this—that I was authorized at all times to negotiate with Mr. Bullock and Mr. Pratt, from the very inception they knew I was handling it; that Mr. Pratt didn‘t want anything to do with Mr. Moore, and I told him so; he told me he did not care to do business with Mr. Moore, he wanted to do business with me; that I was Mr. Bullock‘s son-in-law; he said, ‘I don‘t want to do business with the corporation, but I will do business through your corporation with you.’ I said, ‘All right.’
“A. No, he said he didn‘t want to do business with Mr. Moore and my associates; that he didn‘t care if the corporation or my company or my associates participated, but he wanted the contract with me; that I was Mr. Bullock‘s son-in-law and he did not see any reason whatever for them to
Defendant Pratt testified:
“I told Mr. Bullock, in Mr. Fewel‘s presence, that I couldn‘t legally do what we had agreed to do, but that I didn‘t want to be the beneficiary of that inability to do a thing I had contracted to do in good faith and that I would give any broker or anyone qualified legally to receive the commissions the amount involved. Q. —So therefore you paid it to Moore, Fewel & Devlin? A. —Mr. Fewel said that if I would give the commissions to Moore, Fewel & Devlin he would arrange to see that he got the credit over there. Q. —Well, was that agreeable to you? A. Yes, so far as giving away commissions is agreeable.”
As I read the foregoing testimony I am forced to the conclusion that the trial court was justified in concluding as it did conclude that Fewel advised Pratt that the agreement between them was to be performed by Fewel and his associates who were later organized into a corporation which immediately became licensed as an insurance broker; that Pratt dealt with said corporation by paying to it one-half of the premiums which he collected on insurance policies written for Bullock; that Pratt thereby ratified the assignment of said agreement from Fewel to the corporation and by Moore, Fewel & Company, a corporation, to its successors in interest.
The majority opinion also states that “It was therefore agreed that Fewel should issue a receipt signed ‘Moore, Fewel & Devlin by Richard W. Fewel’ to enable Pratt to show a legal transaction on his books. Pratt made out his check for the commissions to Fewel personally. Fewel deposited the check in his private account which he alone used. Other commissions were subsequently divided in the same manner, the last division being made on February 19, 1931.”
The foregoing statement is only half true as the record shows without contradiction that Fewel had an understanding with the board of directors of the corporations, of which he was a director and officer, that while the portion of the premiums on Bullock‘s life insurance policies to which these corporations were entitled were to be paid to him and by him to Bullock on an indebtedness which Fewel owed to Bullock, Fewel would be charged on the books of the corpo-
“I was vice-president, I believe; and I spoke to them—under my obligation to Mr. Bullock that I owed him so much money, and that I had an understanding with him that I would take these profits, the first year‘s profits and give them to him against my indebtedness, but that I would give the renewals to them, and they could charge me back for whatever I withdrew against my account, which was the current account.
“Q. You mean by that whenever you gave any of these commissions to Mr. Bullock, that the brokerage firm charged you with that money? A. They agreed to such an arrangement and we would work it out sooner or later. I explained it was going to be a big amount of insurance and renewals; and I was the only one in the corporation that was not drawing a sizable salary, and I thought I was entitled to something, and it had to be along this line to work it out.
“Q. Did they agree with that? A. They agreed with that—Mr. Bullock understood it thoroughly.
“A. I testified that I later had an agreement with Mr. Moore, who was attending to the life insurance end of our corporation—I informed him that I was heavily indebted to Mr. Bullock; that I was to take no compensation out of the company; that he and Mr. Devlin were drawing good salaries; that Mr. Bullock felt that I should get something out of it and pay him on account of what I owed him; and I thought we should have some kind of understanding with them whereby I could return those first year‘s premiums to Mr. Bullock, to credit my account; they would get the renewals, and eventually they could charge the amount I gave Mr. Bullock and eventually we would wipe it out on other commissions we wrote.
“Q. When did you have the understanding with Moore, Fewel & Company? A. The first time I talked it over, I think, was with Mr. Moore and Mr. Dawes; and they said they could not agree on it until we had a board of directors’ meeting; and I talked to the boys in the board of directors’ meeting one day and they agreed that that was fair enough.”
The only conclusion which one can draw from the foregoing testimony is that whatever service Fewel rendered in
The leading case of Levinson v. Boas, supra, involved a pawn broker who was operating a pawn shop in violation of the law. The court stated in its opinion: “The respondent, neither at the time of making loans or at any time, had a license to carry on or conduct the business of pawn broker.”
Likewise, in the case of La Rosa v. Glaze, supra, the plaintiff in that action never at any time had a license as agent, commission merchant, or dealer in farm products, as required by section 1263 of the Agricultural Code.
It has been uniformly held that an unlicensed person is not precluded from recovering a commission, if he had such license at the time the contract was performed and the cause of action arose, although the contract under which he seeks to recover commissions may have been executed prior to the time he was licensed. (Houston v. Williams, 53 Cal. App. 267 [200 Pac. 55]; Radich v. Cernokus, 65 Cal. App. 452 [224 Pac. 124]; Brenneman v. Lane, 87 Cal. App. 414 [262 Pac. 400].)
In each of the above-mentioned cases, a real estate broker‘s contract was involved. A contract authorizing a real estate agent to sell real property on a commission basis had been entered into before the agent had obtained a license pursuant to the law of this state, but a license had been obtained by him before the sale was consummated and his right to the commission had accrued. It is true that the court in the Houston case predicated its opinion upon the wording of section 20 of the act, which provides that no person engaged in the business or acting in the capacity of a real
In the case of Davis v. Chipman, 210 Cal. 609, at page 622 [293 Pac. 40], this court, in referring to the case of Houston v. Williams, supra, said:
“In Houston v. Williams, supra, it was held that a limitation upon this rule was made by section 20 of the act, and that the rule in all its rigor should not apply to a person holding a broker‘s license at the time he consummated a sale of real property even though he had no such license at the time he entered into a contract with the owner to pay him a commission. The court there held that a reasonable construction of the act would permit such a holding. While agreeing with the appellate court in this ruling, we are further of the opinion that it would be a most unreasonable construction of the statute to hold that it permitted an action to be maintained as in the present proceeding where the plaintiff had no license at the date the sale of the property was effected, or during any of the time during which he rendered the services for which he seeks to recover, and only secured such a license practically a year after the sale was effected. As plaintiff held no broker‘s license at the time the sale involved herein was consummated, he is not entitled to recover compensation for his services, all of which were rendered prior to his securing any license.”
The inevitable conclusion at which one must arrive from a reading of the above-mentioned cases is that it was the intention of the legislature to denounce the performance of certain acts by a person whom the law required to procure a license before such acts can be performed. In the case of a real estate broker, it was the sale of real estate on a commission basis; in the case of an insurance broker, it was the solicitation or sale of insurance. In other words, it was the doing of something in connection with the conduct of the business of such agent or broker which constitutes a violation of the statute, instead of merely agreeing to perform such acts at some future date, when the person performing the same has complied with the requirements of the law with respect to obtaining the license.
The agreement of July 10, 1928, was a continuing agreement or contract and there is nothing to show that such contract was not to exist as long as Pratt procured insurance under said agreement. The evidence shows that Bullock contemplated taking out $150,000 additional insurance at the time the written agreement was executed. Pratt had no option to terminate the contract at will. There is no evidence that the contract was terminated on February 19, 1931, as contended by appellant. The contract could only be terminated by the mutual consent of all parties. Findings number 27 and number 28 to the effect that the contract was not terminated are supported by the evidence.
There is no merit in the contention that a proper accounting was not had between the parties. An accounting was held and the record fails to show any prejudice to appellant with the exception of the item of interest which was allowed. Respondent introduced in evidence a record containing a list of the companies, the policies and premiums and the commissions which were earned. Appellant reserved the right to check the correctness of this record, and to offer evidence of any error which it might contain. The court found that appellant was paid $23,074.29, as commissions under the agreement, and that respondent‘s share of 50 per cent thereof amounted to $11,537.14. The court also found
It is true that the corporate name of Moore, Fewel & Devlin was changed in 1932 to Moore, Fewel & Dawes. The contract involved in this case was assigned to the last-mentioned corporation January 12, 1932, which was not licensed as a broker until July 1, 1932. During the interval between the date of assignment of the contract to the last-mentioned corporation and the issuance of its broker‘s license, Pratt procured two policies on the life of Bullock of $25,000 each and two renewals of premiums, on or about February 17, 1932, from which commissions aggregating the sum of $2,146.81 were received by Pratt. While the assignor‘s license was in full force during that interval, I assume that since title to the contract was then in the name of Moore, Fewel & Dawes, which was not then licensed as a broker, it would not be entitled to share in such commissions. The judgment of $8,849.39 should therefore be modified by subtracting therefrom said sum of $2,146.81.
Findings numbers 24 and 25 with respect to the interest allowed are not supported by the evidence. The record fails to disclose the dates of payments of commissions to appellant. At least it is impossible to determine which dates refer to the specific times when the commissions were received by the appellant. The record therefore fails to show that respondent is entitled to interest on unpaid commissions which were received by the appellant. The judgment should also be modified by disallowing the items of interest in the sum of $1993.30.
There is no merit whatever in appellant‘s contention that the contract of July 10, 1928, was not assignable, or that he could not be compelled to recognize the assignee thereof, as the evidence is undisputed that appellant dealt with the corporate assignees of Fewel, and accepted receipts signed by said assignees for commissions paid Fewel, pursuant to said contract. The conclusion is therefore inescapable that even though appellant did not contemplate contracting with the corporate assignees of Fewel at the time he entered into said agreement, he is, nevertheless, estopped by his conduct from contending that the assignment of the agreement by Fewel
As I view this case, however, in view of the findings of the trial court, I am of the opinion that the contract of July 10, 1928, was made by Fewel on behalf of the corporation which he contemplated organizing, and the assignment thereof by Fewel to the corporation was a mere formality and was not essential to secure to said corporation the rights to which it was entitled under said contract.
The evidence is sufficient to support the findings of the trial court that said contract was made by Fewel as an officer and agent of Moore, Fewel & Company, and was subsequently performed by him as an officer and agent of the other corporations to which it was assigned.
Appellant has attempted to raise the proposition of res adjudicata against the judgment recovered by respondent in this case. This proposition is presented by way of a motion to take additional evidence in this court, pursuant to
The judgment which appellant contends is res adjudicata of the judgment herein appealed from was entered September 8, 1937, approximately 15 months after the entry of the judgment in the case at bar; said judgment of September 8, 1937, arose out of the following factual situation;
About December 12, 1933, respondent levied an attachment upon certain funds held by the executors of the estate of John G. Bullock. After entry of judgment on June 24, 1936, no stay having been obtained by appellant, execution was levied by the respondent against these same funds. The executors thereupon filed an action of interpleader, and paid the moneys into court, alleging that numerous claims had been made thereto by various creditors of said Franklin L. Pratt. Respondent filed an answer and cross-complaint in this action, setting forth its claim to the interpleaded fund. The cross-complaint sets forth and alleges a prior right to the interpleaded fund for the reasons that, (1) The rights of other claimants were based on certain assignments from Pratt which constituted fraudulent conveyances, and (2) The fund was impressed with a constructive trust therefore no assignments could be validly made by Pratt.
The court in this interpleader action found that Fewel & Dawes, Inc., was entitled to recover said moneys sub-
I am of the opinion it was not the court‘s province in the suit of interpleader to challenge the judgment upon which execution had issued. The sole issue which was presented to the court in that cause of action was neither involved in nor determinative of the issues in the present suit. The issue before the court in that action raised the question as to whether the appellant, Pratt, was a trustee of the interpleaded fund, and as such, whether he violated his duty as trustee by assigning that fund to various claimants. A finding that he was not a trustee of said fund for the benefit of the respondent herein did not determine the issues presented in this suit for an accounting. That final judgment, therefore, is not res adjudicata of the issues presented in this case.
An examination of the cases cited by appellant fails to disclose any precedent for the application of res adjudicata or estoppel under the circumstances of this case.
I am forced to the conclusion, after a very careful examination of the record and briefs in this case that every consideration of equity and justice is on the side of the plaintiff and respondent in this case, and that the defendant and appellant is attempting to evade an obligation which he con-
The judgment should be modified by striking therefrom the commissions on the policies and renewals of February 17, 1932, aggregating the sum of $2,146.81, and the items of interest allowed in the sum of $1993.30, and as so modified, the judgment should be affirmed.
Curtis, J., and Shenk, J., concurred.
FLORA J. WILLIAMS, Appellant, v. WELLS FARGO BANK & UNION TRUST COMPANY (a Banking Corporation) et al., Respondents.
Sac. No. 5404
In Bank
January 27, 1941