Kuhn v. Gottfried
| Decision Date | 26 March 1951 |
| Citation | 229 P.2d 137,103 Cal.App.2d 80 |
| Parties | KUHN et ux. v. GOTTFRIED. Civ. 17790. |
| Court | California Court of Appeals Court of Appeals |
Desmond & Desmond and Walter Desmond, Jr., all of Long Beach, for appellant.
Lloyd S. Nix, Robert F. Tyler, Los Angeles, for respondents.
Plaintiffs herein sought the cancellation of a $5,000.00 promissory note secured by a chattel mortgage given as payment for the purchase price of defendant's medical practice. Defendant cross-complained for collection of the note, foreclosure of the chattel mortgage and for reimbursement for expenditures allegedly made on plaintiffs' behalf. Because Mrs. Kuhn participated in only a minor way in the transaction, reference hereafter to 'plaintiff' or 'respondent' should be understood to mean plaintiff and respondent Dr. Orta E. Kuhn. The case was tried before the court without a jury, and all material findings were in favor of plaintiff. Defendant has appealed from the ensuing judgment.
Defendant, a practicing physician in Long Beach, advertised his practice for sale in the American Medical Association Journal. As a result of the advertisement, he entered into a written agreement with a Dr. Jaworski in July, 1948, for the purchase of the practice, good will and equipment for $15,000.00. After Dr. Jaworski had spent a few days in the office, he abandoned the transaction because he wished to return to Baltimore on account of his father's illness. At that time Dr. Jaworski had paid defendant $2,000.00 on account of the purchase price. On August 20, 1948, defendant filed suit against Dr. Jaworski in the Superior Court of Los Angeles County to recover the balance allegedly due of $13,000.00.
Defendant again advertised in the American Medical Association Journal, and on November 18, 1948, plaintiff and defendant had their first conference at defendant's office concerning the proposed sale. On November 23, 1948, a second conference was held. No written agreement was entered into, but a few days later plaintiff commenced practicing in defendant's office, having in the meantime signed a note and chattel mortgage on the furniture and fixtures for $5,000.00.
The findings of the trial court may be summarized as follows:
That defendant advertised that he would sell a 'completely equipped medical office and case records, best remunerative, strictly cash, practice established 18 years; should gross $2,000.00 monthly; will introduce; 3 approved hospitals, certification not necessary, 208 Heartwell Building, Long Beach 2'.
That the defendant represented that he had a completely equipped medical office, with complete case records; that the practice should gross the buyer $2,000.00 monthly; that his practice was chiefly in the field of pelvic disorders; and that the equipment and furniture in his office was worth at least $5,000.00. That the defendant fraudulently concealed from plaintiff the fact that he was engaged in litigation with Dr. Jaworski over the sale of the practice; that immediately following his execution of the note and chattel mortgage, plaintiff began an investigation of the representations of defendant.
That the medical records of defendant were partial, unreliable, incomplete and inaccurate; that his equipment and furniture were not worth over $500.00 and were outmoded and obsolete; that defendant was in fact engaged in litigation with Dr. Jaworski arising out of an alleged contract to sell the practice; that the representations and concealments by Dr. Gottfried were false and fraudulent and known by him to be so; and were made with the intent to induce plaintiff to execute the note and mortgage; that plaintiff relied on said representations and concealments.
The court further found that the parties each understood that a written contract would be entered into between them, the plaintiff desiring a provision in such contract that defendant would not engage in practice in the city of Long Beach; but that no such contract was entered into; no consideration passed to the plaintiff; that there was no 'meeting of the minds or mutual understanding' between the parties as to the terms of the proposed contract.
Appellant attacks the findings as being unsupported by the evidence, and further assigns as prejudicial error the court's admission of evidence concerning the litigation with Dr. Jaworski. It is contended that appellant was under no duty to disclose the fact of the litigation, because 'in the absence of confidential relations mere silence, without fraudulent acts or omissions * * * would not be unconscionable.' Heydenfeldt v. Osmont, 178 Cal. 768, 773, 175 P. 1, 3. Counsel for appellant have made an earnest and able attempt to show by analysis of the testimony that the findings are not supported by the evidence. The record, however, discloses the familiar situation of conflicts in the testimony of the parties and their witnesses, which conflicts were resolved by the trier of fact in favor of respondent. 'No rule of appellate practice is more firmly settled than that the weight of the evidence is for the jury or the court passing on the facts, and that, as a general rule, an appellate court does not pass upon the weight or preponderance of evidence.' 2 Cal.Jur 936. The credibility of the witnesses is a problem peculiarly within the province of the trial court. Peri v. Los Angeles Junction Ry. Co., 22 Cal.2d 111, 137 P.2d 441. If there be any inconsistencies or contradictions in the testimony of a witness, the question of which portion or statement, if any, is to be believed is for the trier of fact. On appeal, that portion or statement which supports the verdict or judgment is to be accepted; not that portion which would defeat or tend to defeat the verdict or judgment. Bechtold v. Bishop & Co., 16 Cal.2d 285, 105 P.2d 984; Turner v. Whittel, 2 Cal.App.2d 585, 588, 38 P.2d 835; Hansen v. Bear Film Co., 28 Cal.2d 154, 164, 168 P.2d 946; Winning v. Board of Dental Examiners, 114 Cal.App. 658, 667, 670, 300 P. 866. The function of the appellate tribunal begins and ends with a...
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...an 'elderly lady' living alone" had duty to disclose that house was site of a multiple murder 10 years earlier]; Kuhn v. Gottfried (1951) 103 Cal.App.2d 80, 85-86, 229 P.2d 137 [seller of medical practice who truthfully told buyer that a Dr. Jaworski had previously purchased practice but ab......
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