Larkin v. Mullen , 128 Cal. 449 ( 1900 )

The defendants appeal from a judgment directing them to deliver up a certain deed executed by plaintiff, to the defendant, Mrs. Mullen, the wife of the other defendant; that said deed be canceled, and that defendants reconvey to plaintiff the premises described therein. A demurrer to the complaint was overruled by the superior court, and, upon the issues presented by the answer of the defendants, the cause was tried by the court, and findings made supporting the averments of the complaint. Judgment was thereupon entered in favor of the plaintiff. The appeal is brought here upon the judgment-roll, without any bill of exceptions. The findings of fact are sufficient to support the judgment, and, as the appellants have not brought up the evidence, it must be assumed that it was sufficient to support each of the findings. The appellants contend, however, that the complaint is sufficient, and that the general demurrer thereto should have been sustained.

1. It is alleged in the complaint that the plaintiff was induced to reside at the home of the defendants by reason of their false representations that they were his true and devoted friends; that while so residing with them he became ill, and while in that condition was induced to make a will in behalf of Mrs. Mullen upon certain promises and representations made by her; that afterward, on the 25th of June, 1895, when he had partially recovered from his illness, he was persuaded and induced by her to execute to her the aforesaid conveyance; that at the time of its execution he was, by reason of his aforesaid illness, of weak and feeble mind, and incapable of dealing with her, and that she unduly and improperly influenced him, and took advantage of his mental weakness for the purpose of fraudulently obtaining title to said real estate; that he was induced to and did execute to her the said deed of conveyance by reason of his trust and confidence in her, and his reliance upon her said representations and promises, and without any other or further consideration; that thereupon the defendants and the plaintiff jointly entered into possession of the property therein described, and occupied the same jointly until the latter part of 1895, when Mrs. Mullen removed the plaintiff to her home to remain during the winter; that she made no effort to provide for his comfort or happiness, but neglected and mistreated him, and has failed to comply with her said promises, and has repudiated all parts of her agreement. The complaint also alleges that she did not at any time intend to perform or comply with any of her promises or agreements, but that they were made solely for the purpose of defrauding and injuring the plaintiff; and that she knew the representations made by her to him were false and untrue, and that the same were made with intent to deceive and defraud the plaintiff; and that her said promises were made without any intention of performing the same and for the purpose of obtaining title to and ownership of plaintiff's land, for the sole purpose of defrauding him thereof.

One of the grounds of insufficiency in the complaint relied upon by the appellants is that the allegations of fraud are defective, in that the fraud is alleged in general terms, whereas the facts constituting the fraud should have been set forth in detail. The most that can be said of the complaint in this particular is, however, that the fact of fraud is defectively alleged, rather than that there is an absence of any allegation of fraud. Under these general allegations it was competent for the plaintiff, if no objection was made thereto, to introduce evidence of the facts constituting the fraud, and the finding of the court upon that subject was within the issues before it. As it must be assumed that such evidence was introduced without any objection thereto on the part of the defendant, it may also be assumed that it was received by the court with his consent. It is too late for a defendant "after verdict" to object to defective allegations in the complaint, which, if he had pointed them out by specific demurrer before the trial, or by objections to the evidence at the trial, might have been obviated by amendment.(Harnish v. Bramer, 71 Cal. 155; Mendenhall v. Paris, 84 Cal. 193; Amestoy v. Electric Rapid Transit Co., 95 Col. 311; Bliss v. Sneath, 103 Cal. 43;Mullally v. Townsend, 119 Cal. 47. See, also Place v. Minster,65 N.Y. 89.)

2. The objection that the action cannot be maintained by reason of the plaintiff's delay in bringing it is untenable. A defendant will not be permitted to make such objection for the first time in the appellate court after he has gone to trial and suffered defeat in the superior court without making the objection there. If he would make this defense, he should present it in the court below, so that the plaintiff might have an opportunity to meet it by proper proofs.

3. Another ground in which it is claimed that the complaint is defective is the absence of an offer to place the defendants instatu quo; that is, to return to them any moneys received by him, or to make compensation for his board. It does not appear, however, from the complaint that the plaintiff had received anything from the appellant of which he was required to make restitution as a condition of his right to maintain the action. The complaint alleges that no part of the money agreed to be paid for the conveyance had been received by the plaintiff, and, although it is alleged that the plaintiff was residing with the appellants at the time he executed the conveyance, and that it was executed upon the promise of Mrs. Mullen that she would keep the plaintiff and provide for him a suitable and comfortable home during the remainder of his life, it is also alleged that she "failed to comply with her promises, and repudiated all parts of said agreement," and claimed to hold the land adversely to the plaintiff. The defendants do not claim in their answer that the plaintiff has received anything from them, or either of them, as the consideration for the deed, of which restitution should be made, and they deny that they, or either of them, made any promises to the plaintiff, or that the deed was executed in consideration of any promise or agreement on their part, and allege that the plaintiff executed it solely in consideration of an indebtedness then owing by him to them. The finding of the court was, however, against these allegations of the defendants, and thus this defense to the action became unavailable to them. If there had been any defect in the complaint in this respect, it was obviated by these averments in the answer admitting that the plaintiff received nothing at the time of the execution of the deed or thereafter as its consideration.

The court finds as a conclusion of law that Mrs. Mullen is entitled to a reasonable compensation for the care of the plaintiff during his sickness, and for his board; and in its judgment, after directing the defendants to execute a deed to the plaintiff, directs that he pay to the defendants the sum of two hundred and fifty dollars on the receipt of the deed, either in cash or by crediting the same upon any indebtedness they may have against him. There does not appear to be any issue upon which this portion of the judgment can rest, but the plaintiff has acquiesced in the judgment by not appealing therefrom, and the defendants have no ground for complaint therefor.

The judgment is affirmed.

Garoutte, J., Van Dyke, J., McFarland, J., and Temple, J., concurred.