Q.S.W. Corp. v. Malick

CONLEY, P. J.

This appeal originated in the Third Appellate District but was transferred to this forum by the Supreme Court. Prior to the transfer, the appellant filed an opening brief on March 20, 1967; and the Third Appellate District notified counsel for the respondents under date of April 25, 1967, pursuant to rule 17 (b) of the California Rules of Court, that if the respondents’ brief were not filed within 30 days thereafter the case would be submitted for decision on the record, including appellant’s opening brief, unless the appellant desired to argue. No brief was filed by respondents,

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and as the appellant’s counsel stated he did not desire to argue the ease, the cause was submitted for decision by order of this court on the 6th day of December, 1967.

While we are authorized by the rule in question to accept as true the statement of facts in the appellant’s opening brief, we have nevertheless checked the record

in extenso

to verify facts made evident by appellant, and we are persuaded that such statment is by and large correct.

The facts are, therefore, as follows: On the 29th day of December, 1964, Dell M. Malick, acting for himself and his wife, and accompanied by Nial Lueking, an employee, and W. Mike McCray, one of his attorneys, met John Strater, William Wright and Louis Quick, directors and officers of the plaintiff, Q.S.W. Corporation, at about 9 o’clock in the evening in the Hilton Inn at San Francisco Airport for the purpose of entering into a contract for the purchase by the corporation from the Malieks of a trailer park in Redding. Attorney McCray produced an eight-page typewritten conditional sales contract covering the sale and purchase of Twin View Terrace Mobile Home Park. The contract was agreed to, the blanks in the prepared agreement filled in and the contract signed during the early morning hours of December 30, 1964, at which time the plaintiff corporation paid the Malieks $10,000 by cheek. At the same meeting, Attorney McCray wrote out a cancellation agreement, which was executed by the same parties; this second agreement was to take effect if the corporation should be unable to raise $110,000 to finance the purchase by February 1, 1965. It was hoped that the three officers and directors could borrow that amount, on behalf of the corporation, from a trust fund in St. Louis, the beneficiary of which was Quick’s mother. However, it developed that the trustee bank refused to release any funds pending an audit of that and several other trust funds necessitated by the defalcation of a trustee. Quick made numerous other attempts to obtain financing but without favorable result. McCray told Quick on March 27, 1965, that he could arrange a loan from another source, but that did not eventuate.