Gutleben v. Crossley

KNIGHT, J.

Plaintiff, as assignee and successor in interest of Wilhelmine and Ernest Wolkenhauer, brought this action to collect certain moneys claimed to be due as the result of a transaction involving the sale of real estate. The complaint contains four counts. The first two are for the recovery of $7,195 theretofore paid to the defendant Nat M. Crossley by the city of Oakland as an award in an eminent domain proceeding affecting the property involved, and the remaining two are for the recovery of a deficiency of $13,083.20 following a sale under a deed of trust covering said property. The action was tried without a jury and judgment was rendered in plaintiff’s favor and against the defendant Nat M. Crossley for the amount sued for under the first two counts, and accrued interest, and against plaintiff under the remaining two counts. From that part of the judgment so entered against him the said Nat M. Crossley prosecutes this appeal. The other parties defendant to the action are in no way affected by the judgment nor interested in the appeal.

The facts, as they appear from the findings, which appellant concedes are supported by the evidence, and from the allegations of the complaint which the trial court found to be true, are as follows: In November, 1926, the city of Oakland instituted eminent domain proceedings to condemn a strip of land for street purposes. The properties affected thereby belonged to plaintiff’s assignors, Wilhelmine Wolkenhauer and Ernest Wolkenhauer, the appellant Nat M. Crossley and his wife, Walter E. Crossley and others, all of whom were made parties to the proceeding, and the separate parcels owned by each were specifically described in the complaint. At that time the Wolkenhauer property was encumbered with a deed of trust given to the Oakland Bank as trustee. It was so alleged in the complaint; also that the trustee and beneficiary, who were likewise named in said complaint and made parties to the proceeding, claimed an interest in said property.

[251]

Before the Wolkenhauers’ time for answering said complaint expired and on August 11, 1927, the appellant Nat M. Grossley entered into a written contract with them to purchase their property for $14,900. The terms called for a down cash payment of $1400 and the execution and delivery of a five-year noté for $13,500 secured by a deed of trust on the property. Four days after the execution of the contract and on August 15, 1927, the default of the Wolkenhauers was entered in said condemnation proceedings for failure to answer. Appellant then assigned the sales contract to Walter E. Grossley, and on September 6, 1927, the Wolkenhauers conveyed the property to him. The down cash payment of $1400 was made through a bank, and Walter E. Grossley, as the ostensible purchaser, executed the necessary five-year note for $13,500 and the deed of trust securing the same. In this regard the trial court found that “the said Walter E. Grossley and also the defendant, Nat M. Grossley, stated and represented to the said grantors that the said Walter E. Grossley was the purchaser of said property, whereas in truth and in fact, the said Nat M. Grossley and Blanche M. Grossley, his wife, were the purchasers of said property and were the undisclosed principals, and the said Walter E. Grossley was acting merely as an agent and for the convenience of said Nat M. Grossley and Blanche M. Grossley and without the knowledge or consent of the said Wilhelmine Wolkenhauer and Ernest Wollcenhauer, or either of them.” Furthermore, the court found that appellant supplied the money to make the down cash payment, and that although Walter E. Grossley executed said promissory note and trust deed in his own name, he did so for “the use and benefit of and as the act and contract of the defendants, Nat M. Grossley” and his wife, and as their agent.