*1 subject the record shows unduly suggestion, might be questions certain to answer confessed, when he was unable acts of various categorically denied commission important Furthermore, many of charged his victims. by witnesses. corroborated elements of the confession were decedent murdered The evidence independently of confes sufficient sustain verdict He was witnesses as of that crime. identified two sion person of the murder. near crime at the time the scene him and he directed weapon The murder was traced to complete A exam police recovery purse. of decedent’s enough to error substantial ination of record reveals no judgment. (People warrant or the a disturbance the verdict Gonzales, supra, p. 877.) at denying and the order defendant’s motion for a new trial are affirmed. Shenk, J., J.,
Gibson, J., Edmonds, J., Carter, J., Sehauer, C. Spence, J., concurred. Aug. 19, No. 5776. In. Bank. [Sac. 1947.] MAZZERA, al., A. Appellant, HARRY v. ED WOLF et
Respondents. *2 Gumpert Mazzera, Snyder & Zeller, Charles A. J. Calvert Bay and C. Eobinson for Appellant. for Bespondents.
O. C. Parkinson , GIBSON, appealed Plaintiff has from C. J. lot, 50 decreeing of a vacant that defendants are the owners sep- width, pieces feet which lies between two arately respective parties. owned orally complaint alleged plaintiff and defendants agreed wife, defendants, who are husband the lot for benefit of the the mutual upon pay- plaintiff undivided one-half interest to costs, purchased ment of one-half and that defendants accept the lot but refused to tender of half the plaintiff’s conveyance. costs or to make a A count second quiet usual form of a title action. Plaintiff asked that a trust be decreed as adjudged to the one-half interest and that he be the owner thereof.
Defendant Ed Wolf plaintiff testified that he met Mazzera April, on the lot in They 1944. acquainted had not become shortly until date, before this prior had not had business transactions, except Wolf, renting who was lot, permitted Mazzera portion storing ause of it for mate monthly rials at a rental of why $10. Mazzera asked Wolf buy he did not to which replied that the owners *3 wanted too much for it. said, “Buy Mazzera then it for $2,500.00, but pay any don’t $2,500.00, than more and then “All . ” fifty-fifty, go we will ”. answered, ight Wolf r However, nothing was done purchasing about the lot until sometime October, when Wolf received a from letter one of the owners asking him to an offer $2,500, make for the lot. He offered refused, which was and various other offers counteroffers were Finally, made. during part November, latter an agreement was made with the $4,500, owners for a sale at but the deeds to Wolf and his wife were not executed and delivered February. until agreed purchase price paid by was Wolf community from funds, part and no thereof was furnished Mazzera. There was no further conversation between Mazzera and Wolf after the that place one took in April until Mazzera learned sometime in November arranged buy that Wolf had the lot. Mazzera then asked Wolf if was to be “fifty-fifty.” replied Wolf not, saying; it was paid “I $4,500.00 which $2,500.00 was not the yes that I said to.” Mazzera did not then offer pay half price, knowing but that Wolf had made no deposit, going Mazzera said he was call the owners and “raise ante.” “go Wolf told him to ahead.” differed from April
Mazzera’s version of He testified that Wolf particulars. that of inWolf several buy lot, and he understood negotiating said he was replied trying it. Mazzera buy that Mazzera was also much for it. but the owners wanted too was interested you “There need for and I cut- He then said to Wolf: is no bidding property. ting throat for this . . . each other’s buy I Why together partnership; don’t it will we take way you take an undivided half. . . . That undivided half and “okay” bidding against each other.” said won’t be Wolf we buy bidding and it in his own let him do the name. but to bidding agreed and instructed Wolf to start at Mazzera Dye, tenant, told that his could use $2,500. He also Wolf remaining could use the the south 25 feet of the lot and Wolf 25 feet. There a conflict in the as to when the testimony was acquainted, Dye present whether was at this parties became again conversation, parties discussed the lot before whether bought pay Mazzera it, Wolf and whether offered to half testimony upon learning purchase. cost There is also subsequently Dye they “just talking Wolf told kidding” April at the time of the conversation. Neither of The court found as follows: had interest in or connection with operations business con- ducted In property April, 1944, on the of the other. casually general met on the lot and the course of a conver- proposed Mazzera that Wolf sation endeavor to taking name, title in his own and that they would then go fifty-fifty property, taking each an undivided one- half proposal assented, interest. To this Wolf but he took steps purchasing no toward until one of the own- urging him in him ers wrote October to make an offer for An $2,500 refused, lot. offer of was made and and various Finally, other offers and counteroffers were made. a sale was agreed price $4,500, agreed at a purchase price paid by Wolf and his from their wife own No funds. part price Mazzera, although was furnished he of- pay expenditures fered to one-half of the deposit and made a *4 accept any money court. Wolf refused to or to make a conveyance.
The trial court concluded that Wolf and his were the wife lot, April owners of the conversation did not create contract, agreement an enforceable and that the was barred by (Civ. the statute Code, 1624, of frauds 4, subd. and § Code
535
part
that no
also concluded
4).
Proc.,
1973, subd.
Civ.
§
time of
or at the
before
parties
between
nership existed
by
that con
reason of
formed
and none was
conversation
conduct, that no trust
by
subsequent
their
or
versation
by the
or
by
property
the oral
created in the
en
and his wife were
parties, and
Wolf
conduct of the
claims.
against Mazzera’s
quieted
their title
as
titled to have
frauds
the bar of
statute
Mazzera seeks to avoid
making
had
effect of
agreement
contending that the oral
holding
buying and
enterprise
parties partners
relationship
partnership
existence of the
and that the
relation and made Wolf
a confidential
placed
respect
trust with
a trustee of a constructive
per-
further contends that Wolf’s refusal to
lot.
He
duties, and
of his trust
form the
was a violation
required
writing.
agreement is not
to be
that such an oral
imposed
when a
A constructive trust
acquired
justly entitled,
if it
property
has
to which he is
like,
fraud,
actual
or
or
con
was obtained
mistake
fiduciary
through
or con
structive fraud
the violation of some
relationship.
(Crosby
Clark,
v.
132
1
P.
fidential
Cal.
[63
Potter,
Koyer
150
;
971];
Crabtree v.
Cal. 710
P.
v.
1022]
[89
Willmon,
135];
Clark,
In the fraud, case there is no claim of actual theory, Mazzera’s both at trial and on appeal, is that partnership gave created a to a confi rise relationship, dential relationship that the violation of that constituted supports constructive fraud. The evidence trial court’s determination that there was no partnership *5 relationship. According
confidential
to Wolf
did not
acquainted
shortly
April
become
until
before the
conversation.
Further,
prior
had
partnership
there
been
and
no
no other
dealings
parties
business
except
tempo-
between the
as to the
rary
of a
part
rental
small
of the lot. There is no evidence
parties
contemplated going
ever
into a
a
business or
joint
whereby they
profits
venture
would
share
losses.
They
plan
together
did
to
the lot
use
in a business enter-
prise, but, according
testimony,
to Mazzera’s own
lot was
the
physically
to
divided,
using
with his tenant
one-half and
Wolf the remainder
provided
(2)
of
lot. As
section 2401
Code,
of the
ownership
Civil
property jointly
of
or as
tenants in common
of
does not
itself
a partnership,
establish
even if profits
from the
of
use
are
Also,
shared.
in
with
connection
claim of a
confidential relationship, it
significant that,
according to
testimony,
Wolf’s
parties
did not
discuss
matter between the time of the April con-
versation and the
of
lot
some seven months later.
materially
different
The situation
this case
from that
Koyer Willmon,
135],
“Ordinarily, oral claim bene right to the any enforceable give do not one agreements to Viewed as purchase fit the other. of the they clearly acquired, are in land to be transfer an interest the given effect as Frauds; nor within the can Statute juris another, in those promise a to hold for the benefit of save by writing. express need not be dictions where trusts evidenced Except jurisdictions, therefore, complainant can those resulting trust, grow relief not obtain unless he can establish a ing money making purchase, out of use of or trust, a upon constructive based the fraud of the in procuring title, or abuse of some confidential rela tionship. agreement The mere breach of the that the com plainant may share in purchase the benefit of the is not fraud in obtaining title, give and so will not rise to a constructive ’ ’ tr ust. there position to claim that
Mazzera is no likewise resulting only was a he did not case, trust in this not because urge theory trial, this but also be pleadings in his or at cause there is of such a trust. no evidence of existence may
A resulting “intent-enforcing trust,’’ arise trust, or where price paid person, in whole or one in part, (Civ. and the title is taken in the name of another. Code, 853; Douglass, ; Stewart v. 148 511 Cal. P. § [83 699] Moultrie v. Wright, ; 520 Cal. see Stromerson [98 257] Averill, 732].) Cal.2d 808 Obviously, P.2d there is [141 no such showing here, any payment for Mazzera did make or advance any part for purchase. of the consideration made, suggestion connection, has been in this
The
payment
it
that the
have
is not essential
should
been made
resulting
money,
Mazzera with his own
trust
if
payment
arise
grantee,
made
on behalf
pursuant
claimant,
money
to an
to lend
the claimant.
Untrecht,
The case of Viner v.
The is affirmed. Shenk, J., Edmonds, J., Traynor, J., and Spence, J., con- curred.
CARTER, J.I dissent. presented issue this case is whether reasonable *7 may be drawn supporting, contrary inference other than one judgment, the trial resulting court’s a constructive trust trust. Mazzera and Wolf dispute between There no substantial buy the should, agreement that Wolf they had an oral
that But in addition parties. of the joint benefit property for the in the evidence with may been there have that, any conflict trial court has been resolved agreement regard to that Ed Wolf Defendant “Plaintiff and findings. in It found: its general a held lot and . casually upon the . . met [Gilbeau] in the course subjects, other on various with each conversation Ed Defendant proposed Plaintiff of which lot from purchase Wolf, endeavor that, he; Wolf they would name, that in his own taking title owner, undivided taking an each property, fifty go fifty then Ed Wolf Defendant proposal To this interest. one-half of the trial opinion finding Fortifying is the assented.” “turns the case decision of that the He there stated judge. minor except for facts, the “essential law” as question a on of par- of the testimony the exact words in as to variations dispute. in agreement made” are not the oral ties when need not discuss judge that he While it is true the stated a limitation, indicated that price whether there was of the in the minds complete agreement was made which opinion that: judge in memorandum parties met. The said sug- surrounding do the conversation “The circumstances talk. It indulging idle seems gest parties were misunderstood likely to the Court that neither more than harmony law with the conclusions the other.” This is findings (found in the of fact that the contract state which not enforceable because of the statute quoted) was above part- also that there was no Those conclusions state frauds. parties, and that there was no trust nership between appears mentioned. thus by the above created meeting minds there was a of the found that that the court legal made, and that all of the theories agreement was and an general consideration the conclusions of law. given drawn from the only possible inferences (1) that act- finding an Wolf was foregoing (2) agent or Wolf was to advance the ing Mazzera’s as money property a one-half interest for for purchase cannot, findings as asserted appraisal A fair Mazzera. inference, majority opinion, point possible to a third by the Wolf, independent actor, an was to namely, that as According then sell a half interest to Mazzera. property and “go fifty-fifty” the deal. were to on to the acting was not that Wolf was Mazzera. He That means for buyer which speculative as a acting independently person pursuant Mazzera. Where a later sell to he would principal-agent we have a for another acts agent represents another, called “An is one who relationship. dealings persons. representa- third Such principal, with agree- (Civ. Code, 2295.) agency.” Under tion called § the lot court, Wolf was to found ment as agency relation If that is not an Mazzera and himself. for it agency the imagine But even if is no one. there is hard to that Wolf would ad- only inference would be other rational *8 as a loan to Mazzera. purchase price the vance half of agency or a we have an the same whether The result is half agency agent (Wolf) then holds a If an the loan. it is prin the trustee for the as constructive interest in 540
cipal (Mazzera) and the statute of frauds
inapplicable.
is
(Stromerson v. Averill,
Schauer,