Fowler v. Fowler

• Decision Date: 10 June 1964
• Citation: 39 Cal.Rptr. 101,227 Cal.App.2d 741
• Court: California Court of Appeals Court of Appeals
• Parties: Donna Johnston FOWLER, Plaintiff and Respondent, v. Vincent C. FOWLER, Defendant and Appellant. Civ. 27833.

Page 101

39 Cal.Rptr. 101

227 Cal.App.2d 741

Donna Johnston FOWLER, Plaintiff and Respondent, v. Vincent C. FOWLER, Defendant and Appellant.

Civ. 27833.

District Court of Appeal, Second District, Division 1, California.

June 10, 1964.

Roland Maxwell, Paul H. Marston and Richard W. Olson, Pasadena, for appellant.

Ward & Boberick and Cecil L. Whitehead, Pasadena, for respondent.

LILLIE, Justice.

While suit for annulment of her marriage to him was still pending, plaintiff brought this action to establish a constructive trust in certain real property owned by defendant to the extent of monies advanced by her (prior to their marriage) to remove an encumbrance thereon and to make improvements on the same premises. She also sought damages for fraud in the sum of $13,946.36, the total of the various amounts advanced; in a third count she alleged that defendant was indebted to her for monies had and received in the above total sum. The trial court, after adopting findings of fact and conclusions of law substantially supporting the several allegations in each cause of action, gave plaintiff a money judgment. Defendant appeals.

Prior to the parties' marriage in November of 1960, and it is so admitted by the pleadings, monies were paid out by plaintiff toward the improvement of the home occupied by defendant; it is also without dispute that the real property thus improved was defendant's separate property and that the sums paid for such improvements were the separate property of plaintiff. It was plaintiff's contention that these expenditures resulted from an oral agreement with defendant to place title to the property in joint tenancy, and that defendant fraudulently entered into said agreement without any intention of performing his end of the bargain. Defendant denied any fraud on his part, claiming that the expenditures by plaintiff were made voluntarily and without any request or solicitation by him.

Citing Martinez v. Martinez, 41 Cal.2d 704, 706, 263 P.2d 617, defendant asserts that since plaintiff sought relief on three inconsistent theories, the judgment appealed from cannot stand unless the evidence supports a recovery on each of these theories. According to defendant, it does not do so; he specifically contends (1) that the judgment is not supported by the findings, and (2) that the findings are not supported by the evidence. As a subsidiary point, defendant also claims that proof of his alleged fraud was not sufficiently established.

Contrary to defendant's suggestion, none of the remedies sought is inconsistent with the facts pleaded or contrary to prevailing law. As to plaintiff's first cause of action, 'The theory of a constructive trust was adopted by equity as a remedy to compel one to restore property to which he is not justly entitled, to another. The person holding the property may have acquired it through fraud, undue influence, breach of trust, or in any other improper manner * * *.' (Bainbridge v. Stoner, 16 Cal.2d 423, 428, 106 P.2d 423, 427.) As to the second cause of action, the same case holds that 'he is usually personally liable in damages for his acts' although 'the one whose property has been taken from him is not relegated to a personal claim against the wrongdoer * * *.' (Supra, 16 Cal.2d p. 428, 106 P.2d p. 427.) As to the third cause of action, where the evidence discloses that a defendant through false representations has induced the plaintiff to part with his money, a judgment on the common count for money had and received will be upheld. (Strutzel v. Williams, 109 Cal.App.2d 512, 515, 240 P.2d 988.) The plaintiff, however, cannot have a judgment declaring the defendant to be a constructive trustee and a personal judgment for money invested in the subject property. (Title Ins. & Trust Co. v. Ingersoll, 158 Cal. 474, 480-481, 111 P. 360.) A money judgment, as mentioned previously, was the course followed by the trial court in the instant case.

The facts at bar are not without historical precedent. When plaintiff met defendant, she was a widow of substantial means--she testified that her yearly income from various holdings approximated $20,000. Defendant, on the other hand, had no income of any kind, and his sole assets thereafter consisted of his ownership of the Pasadena home which he eventually purchased with funds acquired mainly from the estate of a deceased aunt and, as alleged in the complaint, with monies given him by plaintiff. Defendant admitted a previous felony conviction (grand theft) although this fact was made known to plaintiff prior to the parties' engagement. Plaintiff testified that in August of 1960, she advanced defendant $2,250 for the purpose of a down payment on the house; this was repaid by defendant in two installments. In October of that year, while she was in Oregon, defendant phoned her and stated he needed more money to finance the property's purchase. Upon her return to California, she gave him her check dated October 11, 1960, for $7,150, the sum he had asked for. According to plaintiff, the following conversation was had at that time: 'I said, 'This is a lot of money and it's going to take practically all the money I have out of this account', and he said, 'Well, I will fix it up when we are married'. I said, 'What do you mean, put the house in both names?', and he said, 'Yes'.'

About three weeks later, defendant told plaintiff that he wanted to install a dishwasher, a new sink and a new water heater, adding: 'This is to be our home. I want it fixed up nice.' She gave him her check for $500, the sum he said he needed for the above improvements. Subsequently, plaintiff gave defendant various sums, all represented by checks, on the following dates and for the following purposes: November 7, 1960, purchase of stove--$300; November 7, 1960, installation of air conditioning system--$1,200; November 14, 1960, purchase of drapes--$200; November 14, 1960, wallpaper purchase--$12.48; January 24, 1961, purchase of drapes (breakfast room)--57.50; February 2, 1961, construction of swimming pool--$3,000; February 17, 1961, breakfast room drapes--$16.54; March 8, 1961, also for swimming pool--$500; May 15, 1961, deposited in parties' joint account--$1,000.

As to the trust theory of recovery (plaintiff's first cause of action), the findings of the court were made by reference to certain paragraphs of the complaint, the allegations in which were found to be true. Plaintiff alleged an oral promise by defendant to transfer the property's title, together with improvements, to the parties as joint tenants and that she relied upon his representations as her fiance, friend and business adviser; it was further alleged that defendant did not intend to perform any of his undertakings. A constructive trust arises and will be enforced upon the repudiation of an oral promise to convey. (Steinberger v. Steinberger, 60 Cal.App.2d 116, 120-121, 140 P.2d 31.) 'In such trusts, based upon fraud or wrongdoing, an oral promise is sufficient and the existence or absence of a confidential relationship between the parties, in the strict sense, is not controlling.' (Rankin v. Satir, 75 Cal.App.2d 691, 695, 171 P.2d 78, 80.) Since there is substantial evidence to support defendant's repudiation of his commitments, ¹ the existence or otherwise of a confidential relationship becomes immaterial.

Defendant's criticism of the findings is directed not so much to plaintiff's right to some relief under the theory pleaded (the first assignment of error) as it is to the absence of evidence to support certain items necessarily included in such findings by virtue of the way in which they were drawn. The drawing of findings...