92 Cal. App. 2d 383 | Cal. Ct. App. | 1949
Respondents Abdul Rahim and Abdul Khanan brought this action to have it adjudged they were the owners of a lease on the Metropolitan Hotel in Sacramento, that appellants Ali Akbar and Khan Bahadar held the lease in trust for them, that an assignment of respondents’ interest in the lease to appellants be set aside on the ground of fraud and deceit, and that appellants be required to assign the lease to respondents. Prom a judgment in favor of respondents appellants perfected this appeal.
The evidence is conflicting but there is substantial evidence to support the following findings of the trial court.
On and prior to April 6, 1944, respondent Rahim and appellant Bahadar, as lessees, were the owners of a half interest each in a leasehold estate in and to the Metropolitan Hotel in Sacramento, which lease was for a term beginning June 10, 1944, and ending June 9, 1949, at an aggregate rental of $8,680, $280 thereof being payable upon execution of the lease and the balance at $140 a month. On the same date respondents entered into a partnership and ever since have been copartners, and all transactions herein involved were for the benefit of their partnership. On or about said April 6, 1944, appellant Bahadar stated and represented to respond
At this point it is noted that the evidence shows the assignment was executed on December 14, 1944, and that not until June 6, 1946, nearly 18 months thereafter, did appellants assert ownership of the lease, at which time they instituted an unlawful detainer action; and in those intervening months respondents continued in possession of and managed and operated the hotel as lessees thereof.
The trial court further found that at the time Bahadar made said statements and representations to respondents relative to the document purported to be for income tax purposes, he also told respondents that the landlord was complaining about the manner in which respondents were maintaining the hotel premises, and he said that if respondents would thereafter pay their rentals directly to appellants, Bahadar would handle the transactions in relation thereto with the landlord and thus avert further trouble upon that score. Believing and relying upon such representations respondents thereafter paid their monthly rental to Bahadar instead of to the landlord directly as they had previously been doing. It was not true that the landlord had complained to anyone
The judgment followed the findings and adjudged that respondents were the equitable owners of the leasehold estate and that appellants held the bare legal title thereto for respondents as their trustee; that respondents should recover from appellants, and each of them, the sum of $4,439.41 together with the sum of $416.66 per- month for each and every month subsequent to December 1, 1946, until the end of the term of the lease or respondents’ restoration to peaceful possession, whichever event might first occur, and that appellants should assign the lease to respondents and restore them to possession; and if appellants were not able to restore respondents to possession within 10 days after entry of the judgment, that respondents recover from appellants, jointly and severally, the sum of $16,976.27 as money and property fraudulently and corruptly obtained by them from respondents as a result of the fraud and misrepresentations practiced upon respondents by appellants.
Before proceeding with a consideration of the contentions made by appellants, it must be understood that this court may not interfere with the trial court’s findings since they are supported by substantial evidence. (2 Cal.Jur. 921, § 543; Tobola v. Wholey, 75 Cal.App.2d 351, 355 [170 P.2d 952] ; People v. Cannon, 77 Cal.App.2d 678, 688 [176 P.2d 409]; Lagares v. Kappas, 82 Cal.App.2d 569, 577 [186 P.2d 471]; Dreyer v. Cole, 210 Cal. 339, 341 [292 P. 123].)
The first contention of appellants is that the municipal court judgment was res judicata on the controversial issues determined in the instant action. With that contention we
By virtue of said stipulation, the judgment of the municipal court is not res judicata in this action. (Comer v. Associated Almond Growers, 101 Cal.App. 687, 689 [282 P. 532] ; Morrow v. Morrow, 40 Cal.App.2d 474, 485 [105 P.2d 129], hearing in Supreme Court denied; City of Los Angeles v. Cole, 28 Cal.2d 509, 515 [170 P.2d 928] ; Buick v. Boyd, 37 Cal.App. 508, 512 [174 P. 913].) Also it is to be noted that at no time during the trial, and not until after all the evidence was in, did the appellants assert or claim that the municipal court judgment was res judicata. The case was tried without any plea of res judicata and upon the theory that no such issue was involved. Under such circumstances a litigant will not be permitted to assert a different claim or theory for the first time on appeal. (MacKenzie v. Angle, 82 Cal.App.2d 254, 263 [186 P.2d 30], and cases therein cited, hearing in Supreme Court denied; Wiltsee v. Utley, 79 Cal.App.2d 71, 75 [179 P.2d 13] ; Holbrook v. Smith, 87 Cal.App.2d 66, 71 [196 P.2d 84] ; Guardianship of Romine, 91 Cal.App.2d 389, 393 [205 P.2d 733].)
Next appellants question the sufficiency of the evidence to sustain the finding that appellants procured by fraud the assignment from respondents of their interest in the lease. There is substantial evidence to support the finding that at the time the assignment was executed appellants held a one-half interest in the lease in trust for respondents and while respondents regarded appellant Bahadar as their friend, confidant and adviser and reposed in him their trust and confidence, and before he committed any act that caused them to suspect him of dishonesty or crookedness, he brought to respondents the document typewritten in the English language and represented to respondents that it was necessary that they execute the document for their income tax purposes; and that believing such representation they signed the document which turned out to be an assignment by respondents of all their interest in the lease. In view of the evidence, this court will not interfere with that finding.
The next contention of appellants is that thfe statute of frauds barred respondents’ claim. With that we cannot agree. The contention is based on the proposition that the alleged oral agreement between the parties involved an assignment of a lease to real property and was required by section 1624, subdivision (4) of the Civil Code, and section 1973, subdivision 4 of the Code of Civil Procedure, to be in writing and subscribed by the party to be charged. Those code sections are not applicable to this case for the reason that an oral trust existed between the parties and appellants were found guilty of fraud. In his opinion the trial judge stated: ‘ ‘ The statute of frauds is not available to one who seeks to invoke it that he may retain the fruits of fraud.” Under such circumstances appellants will not be permitted to set up the statute of frauds as a defense. (Le Blond v. Wolfe, 83 Cal.App.2d 282, 286 [188 P.2d 278]; 12 Cal.Jur. 933, § 102.)
Appellants next claim that they did not practice fraud upon respondents. The difficulty with that contention is that the trial court found against them on that issue and the finding is supported by substantial evidence. In such a case the
Finally, appellants argue that there is no presumption of fraud. That is a correct statement as a general matter, but it has no force in this case for two reasons: (1) Upon substantial evidence the trial court found and concluded that appellants were guilty of actual fraud; (2) the court found on substantial evidence that a relation of trust and confidence existed between the parties, and such a relationship creates an exception to the rule stated. (Levy v. Scott, 115 Cal. 39, 42 [46 P. 892] ; Wendling Lumber Co. v. Glenwood Lumber Co., 153 Cal. 411, 417 [95 P. 1029]; Millard v. Epsteen, 58 Cal.App.2d 612, 616 [137 P.2d 717]; 12 Cal.Jur. 818, § 72.)
The judgment is affirmed.
Peek, J., and Thompson, J., concurred.
A petition for a rehearing was denied July 14, 1949, and appellants’ petition for a hearing by the Supreme Court was denied August 11, 1949.