Ashburn v. Miller
| Decision Date | 04 June 1958 |
| Citation | 326 P.2d 229,161 Cal.App.2d 71 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Harris G. ASHBURN and Virginia E. Ashburn, Plaintiffs and Respondents, v. L. M. MILLER and Doris L. Miller, Defendants and Appellants. Civ. 22584. |
Conroy & Conroy, Los Angeles, for appellants.
Melvin Klarin, Hollywood, and Jerome D. Savenick, Los Angeles, for respondents.
Plaintiffs Harris G. Ashburn and Virginia E. Ashburn, husband and wife, sued defendants Lawrence M. Miller and Doris L. Miller, husband and wife, for damages for fraud in the sale to them of a hillside lot in the Mulholland Drive--Laurel Canyon area of Los Angeles, the fraud consisting of misrepresentations concerning the fact that the lot consisted largely of uncompacted fill. The lot sloped downward to the east and the rear or north. In the process of preparing a site for building a residence plaintiffs had to excavate filled material varying in depth from 6 feet to 13 feet, a total of some 1,000 to 1,100 cubic yards, and also had to bring in approximately 500 cubic yards of dirt in order to compact a suitable building site, all at a cost of $1,605.75. The court, after a nonjury trial, found for plaintiffs on the charge of fraud and awarded damages in the sum of $3,000. Defendants appeal, urging insufficiency of the evidence to prove a fraud or to sustain the award of damages. The evidence is conflicting upon both of said issues.
We stated the applicable principles of review of conflicting evidence in New v. New, 148 Cal.App.2d 372, 383-384, 306 P.2d 987, 994: 'The appellate court must accept as established all facts and all inferences favorable to respondent which find substantial support in the evidence. 'And where appellant urges the insufficiency of the evidence to sustain the findings * * * the rule is that, 'Such contention requires defendants to demonstrate that there is no substantial evidence to support the challenged findings.' Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550, 552. (Emphasis added.) It is said in Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429, 45 P.2d 183, 184, that: 'It is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deduction for those of the trial court.'' Hartzell v. Myall, 115 Cal.App.2d 670, 673, 252 P.2d 676, 677. * * * Industrial Indem. Co. v. Golden State Co., 117 Cal.App.2d 519, 538, 256 P.2d 677, 689; '[I]t is settled law that if conflicting inferences may reasonably be drawn from the evidence, even if it is uncontradicted or all facts are admitted, which inference shall be drawn is a question for the trier of facts and its decision cannot be set aside by the appellate court. * * * Only where there is no conflict in the evidence and no conflicting inferences can be drawn therefrom does the finding of the trial court amount to a conclusion of law and is the finding not binding on a reviewing court.''
The evidence adequately supports the finding of fraud. The subject lot adjoins the residence of defendants Miller and had been owned by them since November, 1952. Plaintiffs first talked to defendant 1 about this property in November, 1954. They agreed to purchase it on January 7, 1955, opened an escrow on March 18, 1955, which was closed on March 30, 1955. Mr. Ashburn was and had been for eight years business manager of the Music Department of Universal Pictures. Before that he and his wife had been vaudeville performers, doing a dance number. They had had no experience with filled hillside lots but had been alerted to the supposed dangers of such building sites by what they had read and heard. They admired this particular lot especially. On the November occasion they found Mr. Miller on the property, which had a 'for sale' sign upon it. They asked the price and according to plaintiff defendant said $7,900 or $7,950; they said that was too much money for them and Miller responded: 'Well, the beautiful part of this lot is that it's solid and in the hills it's unusual to find a practically level lot that is solid.' Mrs. Ashburn testified, concerning the same conversation: 'Then, as we were saying that it was a lot of course that was way above our figure, he said, 'If you are interested in the hills here, that is not expensive.' He said, 'If you buy a hillside lot, most of it is either fill or cutting.' I said, 'Is there any fill on this lot?' I was the one that asked him. He said, He said, 'That is why I am getting this price for this lot.' He said, 'You can find cheaper lots, yes, but,' he said, 'because there is hardly any grade and it is a solid lot, that is why I am able to ask this price for it.''
The parties met again at the Miller home on the evening of January 7, 1955. Mr. Ashburn testified: Again, 'We told them we only had so much money to spend and inasmuch as we could save on excavation and it being a solid lot, that we could cut down on the house and take the lot, and we gave them $500 and bought the lot at that time.' Plaintiffs were intending to build an adobe home and so told defendants, showing them a sketch of same. Plaintiff said, This was the first qualification of the flat representation that the lot had no fill in it. It was followed by the further statement: 'Back here in the wing, in the back, there is about two feet of fill, but you won't have to worry about that because your building site is up here and your house will fit in the front part of the lot and it will be fine for you.' Mrs. Ashburn testified that they discussed the heavy construction of an adobe house and Miller said, Defendant also told plaintiffs he was a hauler of dirt, had a fleet of trucks and hauled dirt. The result of all this, as expressed by plaintiff-husband, was: 'We liked them both very much and we believed--we took their word for everything they said because they seemed like such nice people at that time.' Defendant had a printed form of contract which he filled in. The parties signed it and plaintiffs paid $500 on account of the purchase price at that time.
About a week later plaintiff took his mother, Mrs. Aschenbrener, to see the lot and they were invited into the Miller home. The mother testified to the conversation with defendant as follows: Plaintiffs each testified substantially to the same effect.
About two weeks after the contract was signed plaintiff took to the lot Mr. William Mellenthin, a building contractor of 33 years experience, whom he expected to construct his house. There they met defendant. In his presence Mellenthin told plaintiff the lot had all the earmarks of having a fill in it, whereupon defendant said: ' Nevertheless, Mellenthin remarked that test holes should be made. Miller reiterated that there was no fill. However, Mr. Ashburn did not hear the remark about test holes for he was not present when it was said. Later, when Mrs. Ashburn asked defendant about test holes he replied: "If you want to waste $200 to dig test holes, take the $200 and hire Chabot and he'll fix the lot."
Mr. Arthur L. Glasscock, a neighbor of plaintiff, testified that plaintiff introduced him to defendant about April, 1955, when they were on or near the lot in question. 'I heard Mr. Miller make a statement to Mr. Ashburn that it was a solid lot and ready to build on, and that he should have his home completed within three months.' Also, 'Mr. Miller said to myself or to myself and Mr. Ashburn that it was a good price, but that you couldn't buy lots in the hills ready to build on for any less; cheaper lots would have an expensive excavating charge connected with them.' Also that the lot was ready to build on and was solid ground. No mention was made of any fill.
Plaintiff took Mr. Harry W. Keas to see the lot in March, 1955; he is an experienced...
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