Ferguson v. Schuenemann

SHEPARD, J.

This is an action in which plaintiff seeks to establish her equitable interest in certain real and personal property, acquired during the time that she and defendant Schuenemann (who will hereinafter be referred to as defendant) were living together as husband and wife and had agreed to pool their interests in income and property.

After a nine-day trial and voluminous evidence and arguments of counsel, the court found in general substance that in October, 1948, plaintiff and defendant agreed to pool and share equally their income, expenses and property accumulations ; that said parties did so pool their earnings and share equally any expense and acquisition of property from said October, 1948, continuously until March 1, 1955; that they accumulated certain real and personal property during said period of time as is specifically described in the findings and judgment; that certain other defendants, who have not appealed, are entitled to specified reimbursements for beneficial expenditures on one of the parcels of property; that plaintiff is an equal owner with defendant of the property described; for a money judgment to adjust the division

[415]

of certain monies; and for a certain monthly stipend while plaintiff is held out of possession of certain property. Judgment was entered for plaintiff accordingly, and defendant appeals.

Defendant’s first complaint is that the evidence is insufficient to support the finding that plaintiff had an oral agreement to engage in the real estate business and share equally in the earnings thereof. While defense counsel recognized the rule that on appeal an appellate court has “no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom”

(Overton

v.

Vita-Food Corp.,

94 Cal.App.2d 367, 370 [210 P.2d 757], he nevertheless contends that the whole record does not present substantial evidence to support the finding.

Neither party has attempted to give this court any overall résumé of the evidence, but we have nevertheless reviewed the transcript to discover whether or not defendant’s assertion has any foundation. In the interest of brevity we refrain from attempting any great detail, but it does appear clearly from defendant’s own testimony that plaintiff and defendant, late in 1947, assumed what is ordinarily called the relationship of common law husband and wife and lived together in that relationship until about February, 1955; that they took some of the property in their names as husband and wife, bought and sold, executed deeds of trust and notes, and borrowed money representing themselves to public institutions and in many business transactions as husband and wife. Plaintiff made direct contributions as to some of the property. For most of this period she held a real estate salesman’s license, which defendant assisted her to obtain, and worked with defendant in the real estate business as a licensed saleswoman. All of this testimony and other testimony of the defendant amply corroborates the testimony of the plaintiff that from the time they first started living together in the Clifton Hotel in October, 1947, they shared expenses and he used her car; that about the time they first started living together they had a conversation in which each agreed to share equally any earnings and expenses; that when they first joined hands she was making $60 to $75 per week as a beauty operator; that through the years she cooked and scrubbed and maintained the home, kept the garden, did secretarial work at the office, shared her own ear for all the needs of the