De Vries v. Mendes

Decision Date14 September 1959
CourtCalifornia Court of Appeals Court of Appeals
PartiesPaul DE VRIES, Plaintiff and Respondent, v. Frank MENDES et al., Defendants, James J. Brumback, Defendant and Appellant. * Civ. 18311.

Leo R. Friedman, San Francisco, for appellant.

Lloyd M. Tweedt, Derby, Cook, Quinby & Tweedt, San Francisco, for respondent.

WAGLER, Justice pro tem.

On February 18, 1955, defendant Frank Mendes and others robbed plaintiff's assignor, a San Francisco jewelry firm, obtaining money, precious stones, and jewelry, of the reasonable value of $118,195.

On April 17, 1958, plaintiff recovered judgment against Mendes and defendant, James J. Brumback, in the sum of $21,947.13, based upon the alleged conversion of that portion of the property taken in the robbery which was not subsequently recovered. From such judgment the defendant Brumback alone has appealed.

The appeal comes before us upon the clerk's transcript which includes the judgment roll and the written opinion of the trial court. The appeal is based solely 'upon the proposition that the judgment is not supported by and is contrary to the findings * * *.' Respondent's complaint contained three counts. The first was for money had and received and for property delivered to defendants at their express request on February 18, 1955. Count two alleged the forcible taking of diamonds, pearls, gems, and cash on February 18, 1955. The third count was for a balance due on a book account for materials or money delivered to defendants.

In response to the issues tendered by the first count, the trial court made findings to the effect that 'On or about the 18th day of February, 1955, defendants James J. Brumback and Frank Mendes, and each of them, became indebted to Paul de Vries, Inc. for money had and received and for property delivered to said defendants at their express request in the amount of $21,947.13.' In response to the issues tendered by the second count, the court made findings with reference to the specific facts surrounding the alleged conversion. (These findings are hereinafter set forth.)

Respondent urges that the findings on the first count alone are sufficient to support the judgment, and on the basis of such findings alone the judgment must be affirmed. We do not agree. Defendant Brumback demanded a bill of particulars setting forth 'the items of the account and claim about which each of the first, second and third causes of action of plaintiff's complaint [were] based; the date when each item [was] claimed to have arisen and the circumstances thereof.' Plaintiff responded by furnishing a bill of particulars stating: 'Pursuant to your demand for a bill of particulars, the items of the account and claim and acquisition of said items by defendant from plaintiff and plaintiff's assignors on February 18, 1955, are as follows.' (Emphasis added.) (Here follows a list of diamonds, jewelry, etc.) The demand for the bill of particulars went to each count and the bill of particulars furnished was as to each count of the complaint. The record before us makes it adequately clear that the plaintiff had but a single claim against defendants which he chose to state in three separate counts or causes of action. It is also clear that plaintiff's right to recover under the general counts (the first and third) depended upon the allegations and proof of the specific count (the second). Under such circumstances the complaint is to be considered as a whole (South v. Wishard, 123 Cal.App.2d 642, 267 P.2d 827) and as stating but one cause of action. Powers v. Freeland, 114 Cal.App. 146, 299 P. 736; Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 110 P.2d 396. The findings also are to be considered as a whole (Zeibak v. Nasser, 12 Cal.2d 1, 82 P.2d 375; Costello v. Bowen, 80 Cal.App.2d 621, 182 P.2d 615), and the specific findings must be held to control the general. Hammond Lumber Co. v. Barth Inv. Corp., 202 Cal. 606, 262 P. 31; Breakers Holding Co. v. Josebra Co., 122 Cal.App.2d 741, 265 P.2d 938; Wilson v. Wilson, 76 Cal.App.2d 119, 172 P.2d 568.

If the judgment in question is to be sustained it must find its support in the specific findings of fact which read as follows:

'V. On the 18th day of February, 1955, Paul de Vries, Inc., a jewelry firm, owned and had in its possession at its offices and salesrooms in San Francisco, California, money in the amount of $195.00, and certain stock in trade consisting of jewelry, diamonds and other precious stones; said stock in trade then and there had a reasonable value of about $112,000.00.

'VI. On February 18, 1955, defendant Frank Mendes and others armed with dangerous weapons robbed said Paul de Vries, Inc. and certain persons employed therein, of money and said entire stock in trade; that prior to said date, defendant Frank Mendes, one Steve Sorrentino and others conspired and agreed with one Edward Bigarani that said Frank Mendes, Steve Sorrentino and others should rob said Paul de Vries, Inc. and that said Edward Bigarani should receive the stolen property from said robbers; that said robbery was committed pursuant to said conspiracy and the robbers delivered the greater part of said stolen property to said Edward Bigarani shortly after the robbery had been committed; that defendant James J. Brumback was not a party to and did not participate in said conspiracy prior to or during said robbery. (Emphasis added.)

'VII. On February 18, 1955, within a few hours after said robbery, defendant James J. brumback proceeded to the hotel room of said Edward Bigarani in San Francisco, California, and then and there saw the greater part of said stolen property in the presence of said Edward Bigarani and defendant Frank Mendes; that defendant James J. Brumback was then and there made aware of said conspiracy insofar as it involved said Mendes as robber and said Bigarani as receiver; that with said knowledge, defendant James J. Brumback joined, ratified and participated in said conspiracy; that the general purpose of said conspirators was to convert all of the property stolen in said robbery to their own use and benefit and said conspiracy and its purpose had not terminated at the time said James J. Brumback joined, ratified and participated in said conspiracy. Said defendant James J. Brumback thereupon took the greater part of said stolen property into his possession and custody. (Emphasis added.)

'VIII. The greater part of the stolen property was recovered from said conspirators. Money in the amount of $175.00 taken in said robbery was not recovered; jewelry, diamonds and other precious stones, as itemized on plaintiff's Exhibit Number 3 in evidence herein, taken in said robbery, were not recovered; the value of said unrecovered items set forth in said exhibit was the sum of $21,772.13 at the time of said robbery; that by reason of the premises plaintiff's assignor has been damaged in the total sum of $21,947.13.' (Emphasis added.)

In reviewing these findings to ascertain whether or not they support the judgment, we must bear in mind that by the 1951 amendment to the Rules on Appeal all of the presumptions in support of a judgment which existed prior to the adoption of the new rules were restored except as expressly limited by the provisions of Rule 52, as amended. White v. Jones, 136 Cal.App.2d 567, 288 P.2d 913. Thus in a case such as this where the appeal is on the clerk's transcript and the judgment roll alone 'the findings are to receive such a construction as will uphold rather than defeat the judgment, and wherever, from the facts found, other facts may be inferred which will support the judgment, such inference will be deemed to have been [drawn].' Purdy v. Purdy, 1956, 138 Cal.App.2d 402, 404, 291 P.2d 1005, 1007; Goldberg v. List, 11 Cal.2d 389, 79 P.2d 1087, 116 A.L.R. 900; Finney v. Lockhart, 35 Cal.2d 161, 164, 217 P.2d 19; compare Alkus v. Johnson-Pacific Co., 80 Cal.App.2d 1, 181 P.2d 72, and Borges Dusters, Inc. v. Southmost Aviation, 152 Cal.App.2d 25, 312 P.2d 712.

Appellant's entire appeal is based upon the premise that he was held liable for property over which he at no time exercised any dominion and which was never in his possession. This argument appears to be based upon the assumption that the 'greater part' of the stolen property referred to in the last sentence of paragraph VII of the findings and the 'greater part' of the stolen property referred to in the first sentence of paragraph VIII of said findings, refer to identical items. (Emphasis added.)

Assuming for the sake of argument that the findings may be subject to such construction, it must be conceded that such an inference does not necessarily flow from the language used. By referring to Exhibit No. 3 in evidence, paragraph VIII of the findings describes in detail the unrecovered items. Nowhere is there a finding that these items were never under the control or in the possession of defendant Brumback. Under such circumstances, if the interpretation contended for by appellant causes the findings to become inconsistent with the judgment, such interpretation must be rejected, since the actual evidence upon which the findings are based is not before us. In the absence of the evidence a finding which may possibly be construed as consistent or inconsistent with the other findings or the judgment cannot constitute grounds for a reversal of the judgment. 3 Cal.Jur.2d 824; Machado v. Kinney, 135 Cal. 354, 67 P. 331; McAulay v. Jones, 110 Cal.App.2d 302, 242 P.2d 650; Warburton v. Kieferle, 135 Cal.App.2d 278, 287 P.2d 1; Borges Dusters, Inc. v. Southmost Aviation, 152 Cal.App.2d 25, 312 P.2d 712.

Included in the record before us is the opinion of the trial judge. (Such inclusion is now authorized by Rule 5(a), Rules on Appeal.) Although such opinion cannot be invoked to contradict the findings or judgment in any case (Oldis v. La Societe Francaise, etc., 130 Cal.App.2d 461, 279...

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