Tesseyman v. Fisher
| Decision Date | 30 September 1952 |
| Citation | 248 P.2d 471,113 Cal.App.2d 404 |
| Court | California Court of Appeals Court of Appeals |
| Parties | TESSEYMAN v. FISHER et al. Civ. 18758. |
H. J. Kleefish, San Franisco, for appellant.
Courtney L. Moore, San Francisco, for respondents George H. Jovick, Leonard R. Jacobson and Nash Building Co., Inc.
A. V. Muller, San Luis Obispo, for respondents John W. Fisher, Lurene W. Fisher, Cleo S. Clinton and Loretta I. Clinton.
This is a companion case to Fisher v. Nash Building Co., Inc., Cal.App., 248 P.2d 446. Both opinions should be read together for a clear understanding of the facts. The pleadings in that action were made a part of the pleadings in the present action by reference.
Plaintiff appeals from a judgment which decrees that he take nothing; that in the event Nash Building Co., Inc., pays the judgment rendered against it in the Fisher case, the motel property and the furniture and fixtures shall be held by it as security for the sums paid by it, with power to sell in order to reimburse it for the money paid; but in the event Tesseyman pays the Nash Company the sums paid in satisfaction of the judgment in the Fisher case, the latter company shall execute a deed and bill of sale of the motel and its furniture and fixtures to Tesseyman.
The principal issue presented at the trial was whether, under the circumstances alleged by plaintiff, there was a verbal agreement to trade his hotel for the motel, or whether, as maintained by the defendants, there was an outright sale of the motel for a cash consideration, a portion of which was paid with monies derived from the sale of plaintiff's hotel and placed in escrow under instructions of March 23rd and April 11, 1949. 1
The court found that the transaction was a sale and not a trade; title to the motel was to be taken in the name of Nash Company, and upon payment of the full purchase price it is to convey the motel to plaintiff; proceeds used in part payment of the purchase price of the motel were derived from the sale of plaintiff's hotel; these funds, together with a deed from Nash Company conveying the motel to Tesseyman, were deposited in escrow; Tesseyman had knowledge of each and all of the transactions; he agreed to pay the balance of the purchase price on or before August 15, 1949, and there is unpaid to the Fishers the sum of $37,001.17; the Fishers commenced action 17800 2 and recovered judgment against Nash Company for $37,001.17, which judgment decreed a lien against the motel property as security therefor, and ordered that all deeds and bills of sale on deposit with the escrow holder be retained by it to abide the further order of the court.
The court concluded that the Fishers are the owners of the motel 'subject to an agreement to sell the same to the said plaintiff [Tesseyman] for the sum of $155,000.00, upon which purchase price there remains unpaid the sum of $37,001.17; and said Charles Tesseyman is entitled to have delivered to him, upon the payment of said sum of $37,001.17 to the said Fishers, a deed to said Motel Inn property and the furnishings and fixtures contained therein'; in the event Nash Company pays the judgment in action 17800 and receives a conveyance of the real property and a bill of sale of the furnishings, 'judgment be entered to the effect that said Nash Building Company holds said Motel Inn property and said furniture and fixtures as security for the moneys so paid by the Nash Building Company to the said Fishers in satisfaction of said judgment'; upon payment by Tesseyman to Nash Company of the moneys expended in payment of the judgment, Nash Company shall forthwith convey the real and personal property to Tesseyman; in the event Tesseyman fails to pay the Nash Company within 20 days after notification thereof by Nash Company of its payment in satisfaction of the judgment, the real and personal property be sold at police auction, and out of the proceeds of said sale the sheriff shall pay Nash Company the amount paid to the Fishers, with interest, and the surplus, if any, to Tesseyman; if the proceeds are insufficient to pay the full amount due Nash Company, then the sheriff shall specify the amount, and the clerk shall docket a judgment for such balance against Tesseyman and the latter shall pay the same to Nash Company. Judgment followed accordingly.
Plaintiff contends that evidence is insufficient to support the finding that the transaction was a sale. Such contention...
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...court starts with the presumption that the record contains evidence to sustain every finding of fact.' (Tesseyman v. Fisher (1952) 113 Cal.App.2d 404, 407, 248 P.2d 471, 473; other citations omitted.) Defendants' contention herein 'requires defendants to demonstrate that there is No substan......
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