Mastrofini v. Swanson

• Decision Date: 21 November 1952
• Docket Number: No. 6,6
• Parties: 114 Cal.App.2d Supp. 848 MASTROFINI v. SWANSON. Appellate Department, Superior Court, Fresno County, California
• Court: California Superior Court

Page 764

250 P.2d 764

114 Cal.App.2d Supp. 848

MASTROFINI v. SWANSON.

No. 6.

Appellate Department, Superior Court, Fresno County, California.

Nov. 21, 1952.

Wild, Carlson & Reeve, Fresno, for appellant.

Harold Parichan, Fresno, for respondent.

CONLEY, Judge.

Defendant, a dealer in automotive equipment, appeals from a judgment against him for $700; that sum was the amount deposited with him by plaintiff in connection with the uncompleted purchase of a trailer, then owned by one, Remy, who is not a party to the action. Appellant urges as his sole point on appeal that the evidence shows he was the agent for Remy, that he paid over the money to his disclosed principal, and that recovery, if any, must be against Remy, as principal and not against him.

In the first cause of action in the complaint, plaintiff sues defendant for $700 as money had and received by him for the use and benefit of plaintiff; in the second cause of action it is alleged that the defendant received the $700, as agent for the plaintiff, in connection with the proposed purchase of the trailer. Findings of fact were waived, Code of Civil Procedure, Section 632, and, thus, the exact basis upon which the case was decided for the plaintiff does not appear in the record; adequate proof under either theory would be sufficient as it must be assumed, when findings are waived, that all issues necessary to decision under the pleadings and the evidence were resolved by the trial court in favor of respondent. U Drive & Tour. Ltd. v. System Auto Parts, Ltd., 28 Cal.App.2d Supp. 782, 786, 71 P.2d 354.

The consideration of an appeal from the Municipal Court by the Appellate Department of the Superior Court requires an application of the same rules that control appeals from the Superior Court to the Supreme Court and the District Courts of Appeal.

An appellate court has no disposition or power to weigh conflicting evidence, to determine the credibility of the witnesses or to decide on which side the evidence preponderates. When an appeal is based wholly on questions of fact, the duty of the court begins and ends with its determination that, irrespective of conflicts, the evidence supporting the findings, if any, and the judgment of the trial court, is sufficient as a matter of law. In re Estate of Teel, 25 Cal.2d 520, 526, 154 P.2d 384. When the question raised on appeal is whether the evidence supports the judgment, the character of the evidence favoring appellant is of no consequence; only the evidence for the respondent is material, and if it substantially supports the judgment affirmance must follow. Tupman v. Haberkern, 208 Cal. 256, 280 P. 970; Webster v. Board of Dental Examiners, 17 Cal.2d 534, 539, 110 P.2d 992; Continental Insurance Company v. Pacific Greyhound Lines, 43 Cal.App.2d Supp. 877, 880, 111 P.2d 37.

It is also elementary that the evidence in such circumstances must be viewed in the light most favorable to the respondent, and that the respondent is entitled to the benefit of all reasonable inferences in his favor. In re Estate of Isenberg, 63 Cal.App.2d 214, 216, 146 P.2d 424; Hamilton v. Pacific Electric R. Co., 12 Cal.2d 598, 86 P.2d 829.

The theories of the appellant and the respondent sharply conflict with respect to what should be the correct deduction from the evidence. In accordance with his theory, appellant claims that he was merely the agent for a disclosed principal; that pursuant to respondent's directions he credited the $700 to Remy, and that, consequently, Remy must be held responsible for the deposit. If appellant's evidence in support of his theory had been accepted by the trial court and judgment had been entered accordingly, the contention made by appellant would be upheld. Bogart v. Crosby, 80 Cal. 195, 22 P. 84; Zumwalt v. Schwarz, 112 Cal.App. 734, 736, 297 P. 608. But, applying the rules above mentioned, we must, on this appeal, inquire whether there is substantial evidence to support the judgment of the trial court contrary to appellant's theory and in favor of the respondent. If the answer is in the affirmative the judgment must be upheld.

The plaintiff and respondent, Gilbert Mastrofini, testified that in the early part of the summer of 1948 he talked with the defendant and appellant, C. S. Swanson, a dealer in automotive equipment, at the latter's shop in Fresno County. He told him that he wished to buy a three-axle trailer of a certain description, that he would trade in a small trailer which he then owned, and that he would need additional financing on the larger trailer; Swanson said that he had available a trailer of the general description desired by plaintiff at a price of around $2,300 and Mastrofini fixed the price of his own trailer at 'around $800'. A short time later Swanson called...