Mastrofini v. Swanson

114 Cal.App.2d Supp. 848 (1952) GILBERT MASTROFINI, Respondent,

v.

C. S. SWANSON, Appellant.

California Court of Appeals.

Nov. 21, 1952. Wild, Carlson & Reeve for Appellant.

Harold Parichan for Respondent.

CONLEY, J.

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. [1] Findings of fact were waived (Code Civ. [114 Cal.App.2d Supp. 850] Proc., 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 Parks, Ltd., 28 Cal.App.2d Supp. 782, 786 [71 P.2d 354].)

[2] 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.

[3] 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. [4] 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. (Estate of Teel, 25 Cal.2d 520, 526 [154 P.2d 384].) [5] 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 Ins. Co. v. Pacific Greyhound Lines, 43 Cal.App.2d Supp. 877, 880 [111 P.2d 37].)