Strutzel v. Williams

McCOMB, J.

Wilbert C. Hamilton, hereinafter referred to as defendant, appeals from an adverse judgment after trial before the court without a jury in an action to recover upon a common count for money had and received, predicated upon the theory that plaintiffs’ money was obtained by defendant through false representations.

Facts:

The record being viewed in the light most favorable to plaintiffs (respondents)

(Estate of Isenberg,

63 Cal.App.2d 214, 216 [146 P.2d 424]) discloses that plaintiffs Strutzel and Cioffi were partners engaged in the metal parts business. Their partnership agreement had been prepared by defendant Williams who maintained his law office next to defendant Hamilton’s. Plaintiffs were referred to defendant by Mr. Williams for the purpose of collecting a note which was due them. Defendant settled plaintiffs’ case for $6,500.

On January 30, 1947, at the time plaintiffs went to defendant’s office to complete the settlement of their case, he told them he had made a great deal of money in the last three or four months by making investments through a commodity broker, William E. Brunson. He stated Mr. Brunson was a very honorable and honest commodity broker and that defendant had amassed a quarter of a million dollars but did not desire to handle commodities any longer and was going to turn the deal over to defendant Williams. He suggested that plaintiffs see Mr. Williams for the purpose of “getting in on it” and “making a lot of money quick.”

The fact was that at the time defendant made such representations defendant Brunson had been convicted of grand theft and placed on probation for 10 years, one of the terms of which forbade him to handle other people’s money. Likewise defendant did not disclose the fact to plaintiffs that he was to receive 7% per cent of all profits from moneys invested with defendant Williams.

[514]

Relying on the foregoing representations plaintiff Cioffi invested $3,500, of which only $268.89 was returned to him; plaintiff Jack Strutzel invested $2,000, of which he received in return only $149.53; and J. J. Strutzel invested $1,000 of which only $78.58 was returned. The balance of the funds was misappropriated and embezzled.