Bell v. Solomons , 142 Cal. 59 ( 1904 )

I dissent. I cannot agree with the majority opinion in this case. The findings are not supported by the evidence, and for that reason a new trial should be had, instead of merely remanding the cause with directions to the court below to enter judgment upon the findings as therein stated. The defendant was employed by the plaintiff in October, 1892, as her attorney and counsel, to advise her and act for her in relation to all her interests in the estate of her deceased husband, Thomas Bell. The court finds that defendant had no knowledge as to the amount of money which the plaintiff had placed in the hands of Mary E. Pleasant, her colored servant, prior to the commencement of this action, and had no knowledge that any of plaintiff's money had been deposited in the account and to the credit of said Mary E. Pleasant with the Donohoe-Kelly Banking Company, or that said Mary E. Pleasant had in her possession money of the plaintiff for any purpose whatever, and that defendant did not know that any sum of money in the possession of Mary E. Pleasant was the property of the plaintiff, or that its possession had been intrusted to said Mary E. Pleasant by the plaintiff. The court also finds that said Mary E. Pleasant did not, on the twenty-third day of February, 1893, or at any other time, place in the hands of the defendant the sum of eleven thousand dollars of plaintiff's money or any of plaintiff's money above the sum of five thousand one hundred dollars, and that defendant did not receive said sum of eleven thousand dollars knowing it or any part of it to be the money of the plaintiff, and did not pay any money for or on account of the purchase of said judgment and decree of foreclosure or otherwise knowing it to be plaintiff's money.

These findings of the court in reference to the ownership of the money received by the defendant for and on account of the purchase of said judgment and decree of foreclosure and the want of knowledge of said defendant as to said ownership are not supported by the evidence. The Mary E. Pleasant spoken of was a colored woman who had resided with the plaintiff and her husband, Thomas Bell, for many years prior to the latter's death, and continued to reside with the plaintiff after Bell's death until January, 1899. She was familiarly called in the Bell family "Mammy," and was regarded with indulgence by the family, and she talked of the family affairs of her mistress as "hers" and "ours," and the defendant says: "I was employed by Mrs. Pleasant as the attorney of Mrs. Bell," and he states that in the first interview that he had with the plaintiff: "Mrs. Bell said that Mrs. Pleasant had complete charge of her affairs, that she was boss, that she herself understood nothing about business, never had transacted business in her life, and never knew anything of her affairs; that Mrs. Pleasant had always had charge of them as far back as she could recollect, that she was the only mother that she had ever known, and that she had always been a mother to her, and that she was the same as her child, and that everything was entirely in her hands, that whatever she had was Mrs. Pleasant's, and that whatever Mrs. Pleasant had was hers, and that there never had been any distinction, and that there was no use of trying to talk business with her, that she would not know anything about it, did n't want to know anything about it, that Mr. Bell had always kept her like a child, and so had Mammy — she always called her `Mammy,' except sometimes `Mary Ellen' — and she did this in response to a statement that I had made." It appears from the evidence that all the moneys of plaintiff were intrusted to this colored woman as her servant, and were administered by her without any kind of supervision. Her position and powers seem to be of unusual and extreme trust and confidence, as stated by the plaintiff herself to the defendant. He says: "She said I never need consult her under any circumstances in regard to her business, but to consult nobody but Mrs. Pleasant. . . . From that time on I never did." Accordingly all the moneys received by the plaintiff from the estate of her husband, and on policies on his life, amounting during a period of three months following November 8, 1892, to the sum of $37,779.75, were paid to Mary Pleasant, and the greater part of them were deposited by said Mary Pleasant to her own account in the Donohoe-Kelly Bank, from which they were drawn on her check from time to time, as required for the use of the plaintiff or other purposes. Her deposits during this period, together with the balance of a small sum were, as shown by her bank account, as follows: —

1891 — Feb. 28th (balance) ........ $ 38.00 1892 — Nov. 28th .................. 8,767.25 1892 — Nov. 29th .................. 5,000.00 1892 — Dec. 9th ................... 632.15 1893 — Jan. 5th ................... 800.00 1893 — Jan. 6th ................... 10,012.50 1893 — Jan. 14th .................. 6,000.00 1893 — Jan. 23d ................... 1,000.00 1893 — Feb. 23d ................... 5,900.00

Of these amounts, it is admitted that the items of November 28 and 29, 1892, and of January 6 and 14, 1893, were moneys of the plaintiff — the last of said items (six thousand dollars) being for family allowance for the three months ending January 16, 1893. These include all the larger items, excepting the last one, in the account. Some of the other smaller items are unexplained. The thousand-dollar item of January 23, 1893, is perhaps a portion of the family allowance of two thousand dollars for the month ending February 16th, evidenced by receipt as follows: —

"SAN FRANCISCO, January 23, 1893. Received from Lucius L. Solomons Two Thousand 00-100 Dollars in gold coin in payment of Mrs. Bell's allowance for month ending February 16, 1893. M.E. PLEASANT."

In regard to the last item of five thousand nine hundred dollars, it appears from the evidence that the defendant February 18, 1893, received from the executors for the plaintiff the sum of six thousand dollars, being her allowance for three months in advance, which he paid to Mary Pleasant, and took from her receipts as follows: —

"SAN FRANCISCO, February 21, 1893. Received from Lucius L. Solomons One Thousand 00-100 Dollars in gold coin, leaving $5,000 still in his possession to be deposited in my bank. M.E. PLEASANT."

"SAN FRANCISCO, February 23, 1893. Received from Lucius L. Solomons Five Thousand 00-100 Dollars, by check No. 690a, being balance of family allowance up to May 16, 1893. M.E. PLEASANT."

At that date the balance to her credit is found to be $13,522.21. Against this, on the next day, she gave to the defendant her check on the Donohoe-Kelly Bank for eleven thousand dollars, out of the proceeds of which the consideration for the assignment was paid. The amount so withdrawn, together with the sum of $2,515.50, paid on account of the plaintiff for assessments on mining stock owned by her, entirely exhausted the balance in the bank to the credit of Mary Pleasant, except the amount of $6.71. With regard to the alleged loan, there is no specific finding, but merely the general finding already referred to, that of the money represented by the check, five thousand nine hundred dollars was the money of Mary Pleasant, but there is no evidence to justify the finding of the ownership on her part of said money. The court, in fact, found that the Clark-Twitchell mortgage was held by the executors of Bell as security for the sum of $10,466. For this sum demand was made by the executors January, 1893, and the money not being paid, execution was issued on the judgment, and the property was noticed for sale February 24, 1893. Under these circumstances it was proposed by Mary Pleasant to purchase the mortgaged property at the sale, but she told defendant there was not enough money in bank to make the purchase. It was proposed to the plaintiff to obtain from the executors an advance of plaintiff's allowance for three months, and plaintiff consented. She had come with Mary Pleasant to the defendant's office to sign the vouchers, and defendant says: "I don't remember all the conversation, but Mrs. Pleasant announced that she and Mrs. Bell had come down in answer to my summons so that Mrs. Bell could sign the vouchers for the money, six thousand dollars we were going to get in advance, and that Mrs. Bell was going to let her have the necessary amount to make up the full sum necessary to pay the executors for this assignment. . . . I cannot remember the language that was used. Mrs. Pleasant said that she had spoken to Mrs. Bell in accordance with a previous conversation she had with me; that Mrs. Bell was willing to draw her family allowance in advance and to let Mrs. Pleasant have the three thousand five hundred dollars which I believe was the amount that she was short, in order to pay for the assignment of the judgment." From this, in connection with what was elsewhere said by the defendant, the meaning seems to be that the money was advanced to Mary Pleasant to supply the deficiency in her bank account. The remaining two thousand five hundred dollars of the amount was to be used, as the witness explains, in payment of plaintiff's indebtedness for assessments on her mining stock. The defendant himself did not understand that the money was to be advanced as a loan. "I did not so conclude at the time. . . . I suppose that is the legal effect of it. . . . I conclude now it was a loan or gift. . . . I did not pay any attention to the question of advance or anything of that sort, because I had been told by Mrs. Bell that what was hers was Mrs. Pleasant's and viceversa." Hence, what was said by Mary Pleasant, assuming that it was thoroughly understood and assented to by plaintiff, is quite consistent with the theory that the purchase was to be made on account of the plaintiff. This is not only the presumption naturally arising from the relations of the parties and the circumstances of the case, but such presumption is raised by law. In fact, any other construction of the conduct of the parties would not be consistent with the good faith required of one in Mary Pleasant's position, or with the presumptions raised by law with reference thereto. (Code Civ. Proc., sec. 1963, subds. 4, 19, 20, 28; Civ. Code, secs. 2219, 2224, 2231, 2235.) The evidence shows, and the court so found, that "at the time of the death of Thomas Bell said Mary E. Pleasant had on deposit to her credit in the said Donohoe-Kelly Bank, a balance of $33.08 only, and there is no evidence showing that afterwards she received, or had in her possession, or deposited in her bank, any money belonging to herself. It is clear, therefore, that the sum of five thousand nine hundred dollars, as well as the rest of the money used in the purchase of the judgment was the money of the plaintiff, and the property purchased also became hers. "When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made." (Civ. Code, sec. 853) And the defendant, from his relations with the parties and the transactions, must have known this.

"If the party obtains knowledge or information of facts which are sufficient to put a prudent man upon inquiry, and which are of such a nature that the inquiry if prosecuted with reasonable diligence would certainly lead to the discovery of a conflicting claim, then the inference that he acquired the information constituting actual notice is necessary and absolute." (2 Pomeroy's Equity Jurisprudence, sec. 597; Lady Washington Con.Co. v. Wood, 113 Cal. 482; Duff v. Duff, 71 Cal. 513.)

There is no apparent reason why this colored servant, without means, should seek to acquire the lot in question as her own property, and that either Bell in his lifetime or his widow, the plaintiff, should have loaned her the money for such purpose. But there is every reason why the Bells should desire the lot in question, as it adjoins the Bell homestead property, and all these circumstances must have been known to the defendant — in fact, he admitted he knew that property very well. Hence the unreasonableness — not to say absurdity — of the contention that the transaction was a bona fide purchase by Mary E. Pleasant — the colored servant of the Bell family — of the lot in question. She was in court as a witness on the part of the plaintiff. Still the defendant did not call her to substantiate his theory that the purchase was for and on her account as her own property.

From the foregoing it is evident that the findings as to the ownership of the funds that were used in the purchase of the lot in the suit, and also as to the title to said lot, and as to the want of knowledge of the defendant as to the right and ownership of the plaintiff in the premises, are not supported by the evidence.

But if, as found by the court, Mary E. Pleasant was a part owner with the plaintiff in the property in litigation, she should have been made a party to the action, but the defendant, although contending with the finding of the court that such is the case, raised no objection on that score, either by demurrer or answer, and, therefore, as to him such an objection was waived. (Code Civ. Proc., sec. 434.) "But when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in, and to that end may order amended and supplemental pleadings, or a cross-complaint to be filed, and summons thereon to be issued and served." (Code Civ. Proc., sec. 389.)

The defendant, it is to be noted, does not in his affirmative defense, nor in his testimony, claim the absolute ownership of the land in controversy. But his claim is, that he holds the land in pursuance of an agreement with Mary E. Pleasant, whereby he is to dispose of it and apply the proceeds to the payment of the balance due on the two notes for six thousand two hundred dollars and three thousand dollars respectively. But it was not shown on this trial that Mary E. Pleasant had authority, as agent of plaintiff or otherwise, to hypothecate the land as security for the notes in question, or either of them. If, however, on another trial it should turn out that she did have such authority, and the notes were given under circumstances which would make the consideration questionable under the law relating to persons occupying confidential relations, it would in such event be necessary to ascertain the value of the services which enter into the consideration, and thus arrive at the amount justly due to defendant in the premises. The plaintiff, however, should not in any event be relegated to another suit to determine her right to the land as against the defendant or other parties, but, if necessary, such other parties should be brought in.

A rehearing was denied February 27, 1904, upon which the following opinion was rendered by the court: —