256 P. 832 | Cal. Ct. App. | 1927
The plaintiff and respondent and defendant and appellant were formerly husband and wife and were such at the inception of the transaction resulting in the pending litigation. They were married in Oklahoma in 1902, where they resided until 1906, when they came to California, where they resided until 1917, when they were divorced. The plaintiff was an American Indian, and as such succeeded with her children by defendant to certain land allotments in the state of Oklahoma. The property so allotted to plaintiff was manifestly her separate property. Early in the year 1911 the defendant and appellant disposed of his business interests in the city of Bakersfield and made a trip to Oklahoma, and while there, with the consent of the plaintiff, disposed of the land hereinbefore mentioned belonging to her, for which he received $2,100 in cash, and a lot and house at Tulsa, which he subsequently, and after the parties were divorced, sold for the sum of $500. In addition to these sums he received several hundred dollars, the exact amount of which is uncertain, through the sale of some portions of the land allotted to their children. The marital relationship of the parties after the return of the defendant to California in the fall of 1911 was to say the least quite tempestuous. They lived together at times and lived separately at other times from that date up to the date of the divorce, which was granted some time in the year 1917. The circumstances and conditions under which they lived prior to 1911 is not disclosed by the record. The evidence clearly discloses that the plaintiff was completely dominated by the defendant. On the return of the defendant from his trip to Oklahoma, the family made a trip to the northwest and on the return trip remained in Tacoma for a considerable period of time, where a lodging-house business was purchased and conducted by them, whether profitably or unprofitably may not be accurately ascertained from the record. This business was sold and *286 the parties returned to Bakersfield, California, their original place of residence in this state, where the defendant purchased a meat market business, taking in with him as his partner a brother. The bone of contention in this litigation centers around the capital invested in this enterprise, its source and the circumstances and conditions surrounding the investment. It may be stated in passing that none of the money received by defendant for the sale of the plaintiff's property in Oklahoma was ever delivered directly to her; however, it is the contention of the defendant that this money was largely if not totally consumed in expenses in Oklahoma and to pay the expenses of the trip of the family to the northwest and their return. There is no doubt, and the record we think fully establishes the fact, that at the time of the purchase of this meat market business in Bakersfield the defendant had no funds or other property belonging to him, and there is evidence in the record from which it may reasonably be concluded that the partner brother of the defendant was also broke. A cash payment of $1,500 was made on the purchase price of the business and installment notes were given by the brothers for $3,000 additional, payable at stated times in the amounts of $500 at each payment.
[1] Assuming that the evidence before the court satisfactorily establishes the bankrupt condition of the brother, and in view of the undisputed fact that the defendant himself had nothing, it may be reasonably and logically held that the initial cash payment of $1,500 was made up entirely from the separate funds of the plaintiff. The trial court made no specific finding on this point, but does find that the entire amounts of $2,100 and $500 were appropriated and converted by defendant to his own use. This finding is not supported by the evidence in the case. It clearly appears that a considerable portion of the original $2,100 that came into the possession of the defendant as the result of the sale of plaintiff's separate property in Oklahoma was expended, with the consent of the plaintiff, on the trip that was made to the northwest, and the evidence also discloses that the $500 received from the sale of the Tulsa property did not come into the possession of the defendant until some six or seven years subsequent to the purchase of the Bakersfield *287
meat market business. It is the defendant's contention that the money used as an initial payment on this property was borrowed by him from his brother, a contention that apparently had little weight with the trial court. This business enterprise was successful and profitable. The $3,000 indebtedness against the property at the time of the purchase was entirely paid off, and during the succeeding eight years the profits of the business were such that the defendant purchased the several parcels of real property described in the complaint and which the plaintiff demanded should be impressed with a trust in her behalf to the extent of the entire interest of the defendant, and such was the holding and judgment of the trial court. It is manifest that the trial court paid little attention to the evidence of the defendant and was slightly impressed thereby. The brother of the defendant was not called as a witness. Notwithstanding the denials of the defendant, his conduct as a witness and the unconscionable contracts he extorted from his wife (as found by the trial court) may well have justified the trial court in discrediting him on all points wherein his testimony was in his own favor if the conditions were such that contradictory evidence could not be produced. The plaintiff seriously objected to the defendant's taking his brother in as a partner in the Bakersfield business. [2,3] This, however, was the only objection that she made to the purchase of the business and to the investment of her funds therein, and we are satisfied that the evidence amply justifies our conclusion that the use of the plaintiff's capital in the business conducted by the defendant and his brother was with her consent, and that by accepting and using this fund in his business he became a trustee to that extent for her benefit. As was well said by the supreme court of this state in the case of Title Ins. Trust Co. v. Ingersoll,
The judgment of the trial court is reversed, with directions to proceed in accordance with the suggestions contained *290 in this opinion and to take such evidence as may be necessary to determine the matters therein indicated.
Works, P.J., and Craig, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 18, 1927.