Wilson v. Sampson

Cecelia Wilson, an alleged incompetent person, brought this action through the guardian of her person and estate, seeking judgment against William H. Samp

The amended complaint, which will hereinafter be referred to as the complaint, was in six counts. The first alleged that on April 27, 1946, plaintiff was the owner of Lot 13 in Block 461, in the city of Vallejo, referred to as the Tennessee Street property, and that on said date, and while she was incompetent and William H. Sampson knew it, she deeded said property to him without consideration.

The second count alleged that the Tennessee Street property was conveyed to said William H. Sampson while plaintiff was laboring under the false belief that she was being persecuted, and that said defendant, knowing her state of mind, falsely and fraudulently represented to her that if she would deed the property to him she would not be persecuted, and he would deed it back to her when he finished a garage which he was building on property on Pennsylvania Street in Vallejo; that she relied upon said defendant’s representations, reposed trust and confidence in him, and deeded the property to him, but that he refused to reconvey it to her.

The third count alleged that on March 29, 1946, while plaintiff imagined she was being persecuted, and William H. Sampson knew her state of mind, he represented to her that if she would invest $3,482 in property on Pennsylvania Street and take title in his son’s name she would no longer be persecuted; that those representations were untrue to said defendant’s knowledge, but that, relying upon them, she withdrew $3,482 from her bank account, which money was used as a payment on account of the purchase price of said property, title thereto being taken in the names of Raymond and his wife, both of whom had knowledge of the foregoing facts; that defendant William H. Sampson represented to her that when he had completed the garage on said property he would cause the grantees to deed the property to her, but that they refused to do so.

The fourth count alleged plaintiff to be the owner of all of the real property above described, and she prayed that her title thereto be quieted.

The fifth count alleged that while plaintiff was of unsound mind and laboring under the false belief that she was being persecuted by gangsters and others, William H. Sampson, knowing her state of mind, falsely and fraudulently represented to her that if she would turn her properties over to him he would and could assist her so that she would no longer

The sixth count alleged that about March 29, 1946, plaintiff was the owner of certain household furniture of the value of $2,000 which William H. Sampson and Raymond E. Sampson moved to the Pennsylvania Street property on the false and fraudulent representation that they would fix a room for her on said premises in which she could live; that they knew said representations were false, and knew that she delivered the furniture to them in reliance thereon, but they did not fix the room, and used the furniture for themselves, claiming it as their own.

Defendants, joining in one answer, denied the allegations of the complaint with certain exceptions; denied the allegations of incompetency, and of fraudulent representations and lack of consideration.

The issues were tried by the court without a jury, in March, 1947, and resulted in a judgment for defendants. A new trial was denied, and this appeal followed, the first ground for reversal urged being that the trial court admitted hearsay evidence after the case had been submitted, and the second that the evidence does not support the findings.

Dealing with the latter ground first, the trial court found that on April 9, 1946, William H. Sampson paid $4,000 in cash to plaintiff for an undivided one-half interest in the Tennessee Street property, and received a receipt from her, signed V. Wilson; and on the 25th of April he paid to her $2,780 in cash and assumed a deed of trust for her remaining one-half of the property; that on March 18, 1946, defendant Raymond E. Sampson purchased from Ann Coletti the Pennsylvania Street property for $12,500, paid $5,400 thereon on March 18, $600 on March 20, and assumed a deed of trust for the balance; that during the period from March 18 to March 20 he borrowed $3,482 from plaintiff, and paid her back $3,485 in

Regarding the promissory note and chattel mortgage, the court found that William H. Sampson paid plaintiff $800 in cash for same on the 21st day of June, 1946; that said sum was the reasonable value of said note; and that the household furniture formerly located on the Tennessee Street property was sold at the time the real property therein was sold as a part of the consideration; and the conclusion was that plaintiff had no right, title, estate or interest in either of the parcels of property, the furniture, or the note or chattel mortgage.

It may be conceded that in the main the evidence in the case is conflicting. But in such state of the record an appellate court must accept the findings of fact of a trial court if there be sufficient evidence to sustain them. (Outram v. Taft Realty Co., 207 Cal. 212 , 214 [ 277 P. 480 ]; Hicks v. Reis, 21 Cal.2d 654 , 659-660 [ 134 P.2d 788 ]; Nielsen v. Frank, 117 Cal.App. 117 , 120 [ 3 P.2d 607 ]; Hughes v. Grandy, 78 Cal.App.2d 555 , 566 [ 177 P.2d 939 ]; Martter v. Byers, 75 Cal.App.2d 375 , 381 [ 171 P.2d 101 ]; Nichols v. Mitchell, 32 Cal.2d 598 , 600 [ 197 P.2d 550 ].)

The credibility of witnesses and the weight of evidence was for that judge who saw and heard the witnesses and was able to draw his own conclusions from their demeanor and conduct. (People v. Chamberlain, 7 Cal.2d 257 , 260 [ 60 P.2d 299 ].)

Where a plaintiff pleads fraud the burden is upon him to prove it, and the presumption of law is against it. (Gundel

And as for competency, presumptions are in favor of it. (Estate of Gordon, 142 Cal. 125 , 131 [ 75 P. 672 ]; Estate of Perkins, 195 Cal. 699 , 703 [ 235 P. 45 ]; People v. Chamberlain, supra.)

We cannot say that there is no substantial evidence to sustain the findings. Even the evidence set forth in appellant’s brief does not establish a confidential relationship between William H. Sampson and appellant as all it shows is that Sampson roomed at appellant’s rooming house on the Tennessee Street property, sometimes helped her with her work, and that they frequently sat together and “talked very friendly.” Appellant testified that Sampson made love to her, but even so, friendship, affection, and even intimacy existing between two parties does not constitute a confidential relationship. (Meyer v. Zuber, 92 Cal.App. 767 , 772 [ 268 P. 954 ]; Jackson v. Gorham, 98 Cal.App. 112 , 116 [ 276 P. 391 ].) No claim is made in appellant’s briefs that a confidential relationship existed between appellant and the other two defendants.

As for appellant’s mental condition during the time when the foregoing transactions with defendants were had, while there is some evidence from which the conclusion might have been drawn that she was incompetent, the record is not lacking in evidence to the contrary. She had a bank account from which she drew money for which she secured cashier’s checks, both before her transactions with defendants, and subsequent to the trial. Attorney Wallace Cox whom she had consulted in February, 1944, when the Kenner note was executed, and on April 8th and 9th, 1946, regarding the sale of a half interest in the Tennessee Street property and who prepared the deed for same, and whom she also consulted on April 26, 1946, regarding the assignment of the Kenner note, testified that she was in the same mental condition at all those times, and competent to transact business. Witness Roy L. Hartsook, who roomed at appellant’s house from June, 1943, up to and including 1946, and who saw and talked with her nearly every day, gave a like opinion. Jack Justice and his wife, who leased the Tennessee Street property from Sampson after its transfer to him, both testified that they visited the premises in June, 1946, with appellant and Sampson, three times, that appellant took them over the rooming house,

While appellant in her brief sets forth evidence to the contrary, including that of one doctor, the trial court was not compelled to adopt their conclusions, even those of the doctor. (Liberty Mutual Ins. Co. v. Industrial Acc. Com., 33 Cal.2d 89 , 94 [ 199 P.2d 302 ]; Berry v. Chaplin, 74 Cal.App.2d 652 , 665 [ 169 P.2d 442 ]; People v. Tucker, 88 Cal.App.2d 333 , 339 [ 198 P.2d 941 ].) Appellant argues that the opinions of the defendants’ witnesses were not admissible because they were not intimate friends. (Code Civ. Proc., § 1870, subd. 10.) But that, too, presented a matter for the determination of the trial court, where no abuse of discretion appears (Atkins Corporation v. Tourny, 6 Cal.2d 206 , 212 [ 57 P.2d 480 ]; Estate of Perkins, supra, at p. 710; Hart v. Olson, 68 Cal.App.2d 657 , 663 [ 157 P.2d 385 ]); and, further, the testimony of these witnesses was received without objection by appellant, so her objection may not be considered for the first time on appeal. (Compare People v. One Ford V8 Coach, 21 Cal.App.2d 445 , 448 [ 69 P.2d 473 ], hearing in Supreme Court denied; Hart v. Olson, supra, p. 663; Powers v. Board of Public Works, 216 Cal. 546 , 552 [ 15 P.2d 156 ]; Berk v. Equitable Life Assurance Society, 7 Cal.2d 544 , 546 [ 61 P.2d 762 ].)

Appellant next contends that the evidence does not support the finding regarding the financial condition of William H. Sampson. She does not deny that Sampson gave testimony regarding possession of sufficient moneys but asserts that such testimony is “fantastic and incredible.” While it may seem so to appellant and might even seem so to us, the credibility of the witness was for the trial court who saw and heard him testify that he brought from Texas in a steel locker $6,500 in cash which his brother-in-law had given him in repayment of a loan which had been evidenced by a note and mortgage, and also other money in an indefinite amount; and it is admitted that, in addition to the cash in the locker, he had $2,817 in a Vallejo bank.

Other testimony might be recited which tends to support the court’s findings; and on this appeal this court is obliged to accept as true such evidence as supports the findings, and to disregard conflicting evidence. Appellant, we think, has failed to give due regard to this limitation upon appellate courts, in arguing on appeal matters only proper for consideration by the trial court.

“O’Donnell Tex 3-10-47

- “Dear Henderson.

“ How are you all getting along ? We are just fine. We had a snow last week just about three or four inches I guess. We sure need a rain. The note for $6000.00 that you loaned me in 1942 I can’t seem to find it anywhere it must have been destroyed with some of the other old papers. I didn’t think about you wanting it, or I would have kept it. After we payed it off I didn’t think it was any good or I would have been more careful where I put it.

“How is Dalton liking Vallejo? What is he doing now?

“Lots of love from.

“Lenna and Ervin Sumrow.”

Copy of same was sent to counsel for appellant at the same time, but no objection was voiced by him until notice of intention to move for a new trial was filed in November, some eight months later. The letter was not received as evidence, and in view of the fact that Mr. Kilpatrick in sending it to

Corroboration of Sampson’s testimony regarding the repayment of the loan was furnished by Dalton Sumrow, son of Ervin Sumrow, who testified that he was present in Texas when the $6,500 was paid to Sampson, and that he himself counted it out in $100 and $50 bills; and that his “dad” said he was paying off the note he owed Sampson for money he had borrowed in 1942. This witness also testified that he saw the note and mortgage which mortgage covered three tractors and other farm equipment. Even if there could be said to have been error we cannot say that it was necessarily prejudicial. (Compare Mullanix v. Basich, 67 Cal.App.2d 675 , at p. 679 [ 155 P.2d 130 ], and Roy v. Salisbury, 21 Cal.2d 176 , at p. 187 [ 130 P.2d 706 ].)

The judgment is affirmed.

Peek, J., and Thompson, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied June 23, 1949.