Boone v. Hall

• Decision Date: 01 December 1950
• Docket Number: No. 17614,17614
• Citation: 224 P.2d 881,100 Cal.App.2d 738
• Court: California Court of Appeals Court of Appeals
• Parties: BOONE v. HALL. Civ.

Page 881

224 P.2d 881

100 Cal.App.2d 738

BOONE v. HALL.

Civ. No. 17614.

District Court of Appeal, Second District, Division 2, California.

Dec. 1, 1950.

Rehearing Denied Dec. 15, 1950.

Nichols, Cooper & Hickson, and R. G. Lamb, all of Pomona, for appellants.

Carter, Young, Zetterberg & Henrie, and Stephen I. Zetterberg, all of Pomona, for respondents.

McCOMB, Justice.

From a judgment in favor of defendants after trial before a jury in an action to recover $2,629.94, which plaintiffs overpaid defendants through a mistake, and to recover the sum of $250 for escrow labor and services performed, plaintiffs appeal.

Facts: In 1946, several residents of Pomona formed a voluntary association known as the Veterans Housing Association of Pomona Valley. Later this organization incorporated as a nonprofit corporation for the purpose of (1) obtaining temporary housing for those in need, and (2) providing a vehicle for achieving inexpensive permanent housing for veteran members. Defendant Hall was one of the original organizers of the association. Though one of the original members he did not give full time to the organization until the last two months of 1946, at which time he gave up his normal business activity and devoted his entire time to matters of the association. Plaintiffs were conducting an escrow and loan business in the city of Pomona as copartners.

Prior to August 5, 1947, defendants purchased certain real property in the city of Pomona. An escrow for the transaction was opened, known as number 1382. Subsequent to this escrow and the transfer of real property to defendants the property was subdivided by defendants and there was opened with plaintiffs an escrow known as the 'Hall Subdivision Escrow, number 1616.' The purpose of the escrow was to serve as a depositary for funds from the sale of the various lots within the subdivision.

In addition to the Hall subdivision escrow defendants opened 24 other individual escrows in each of which defendants appeared as the sellers and other individuals appeared as the buyers. In none of the escrow instructions does it appear that defendants were acting as agents for any named principal. They executed the deeds for various parcels of property. In one of the escrows defendants took from the buyers a promissory note for a deed of trust and admitted receiving and retaining for their own use the monthly payments of principal and interest.

Funds were deposited in the Hall subdivision escrow by defendants and in addition funds were transferred from other sources into the Hall subdivision escrow. Upon written instruction of defendants only, funds were paid out by check either to defendants or at their order. The total amount deposited in the Hall subdivision escrow was $11,732.60. The total amount disbursed upon written instructions of defendants from the escrow was the sum of $14,362.54. A mistake in overpayment to defendants occurred when an escrow clerk employed by plaintiffs paid to defendant Lorine V. Hall $2,754. Instead of the Hall subdivision escrow number 1616, escrow number 1611 was typed on the check and copies, which latter number was in no way related to the Hall subdivision escrow. As a consequence of this error, escrow number 1611 was debited for the amount of the check. On January 15, 1948, when escrow number 1611 was to be closed, a shortage of $2,754 was discovered in the account, the error above mentioned came to light, and $2,754 was transferred from the Hall busdivision escrow to escrow number 1611. Defendants were immediately notified of the mistake.

On or about March 10, 1948, defendant Gordon W. Hall refused to reimburse plaintiffs for the amount of the overpayment.

During the course of the work on the subdivision all the contracts were let in the name of defendants and all accounts were carried in their names. In none of the transactions did defendants execute any documents as agents. All funds withdrawn from the Hall subdivision escrow were either deposited in their individual checking accounts or were paid over directly to the various contractors to satisfy accounts carried in their own name or names. Funds received from the Hall subdivision escrow were commingled with personal funds at all times and personal obligations were paid therefrom. In addition to transacting all business in connection with the Hall subdivision as the owners thereof, defendants never at any time made any accounting to their alleged principal, the Veterans Housing Association of Pomona Valley, Inc.

Before learning of the error, defendant Gordon Hall had expended the money received by him through the mistake, or had agreed to expend it on behalf of his principal.

Questions: First: Was the cause properly tried before a jury?

This point is not available to plaintiffs on this appeal for the reason that no exception was taken or noted by them to the ruling of the trial court in permitting a jury trial. Where no exception is taken or noted to the rling of ...