California Court of Appeal May 9, 1969 No. Civ. 32860Published
Before: Fourt
FOURT, Acting P. J.
This is an appeal from a plaintiff’s judgment for money.
Willie Mae Brown, a widow of 78 years of age, caused to be filed her complaint (February 19, 1965) against the named defendants wherein she alleged among other things that on June 21, 1955, The World Church (Sometimes hereafter referred to as Church) by and through its president, O. L. daggers, executed its promissory note by the terms of which the Church promised to pay Margie W. Fain or Willie Mae Brown, or their order on June 21, 1957, the sum of $5,256.67 with interest at 6 percent per annum. Further, that plaintiff had only received the sum of $315.40 as interest and she was entitled to the principal sum plus interest from dime 21, 1956, that she by virtue of the death of Margie W. Fain in 1959 was the holder and owner of the note, that plaintiff was a widow 75 years of age, a member of the Church and had attended religious services at the Church since its inception in 1952 up to June 15, 1964, and O. L. daggers as president and minister of the Church had been her personal minister and pastor. Further that O. L. daggers and David B. daggers acting individually and as officers of the Church represented to plaintiff that she should not worry with reference to the note, that she could rely upon the Church to pay the note and that she should not consult a lawyer to collect the note, that each of the daggers personally guaranteed payment of the note, that they were holding money in trust with which the note would ultimately be honored without any legal action for collection even though the statute of limitations might become applicable, that if any person sued it would become a sin against the Church and that she should believe her ministers. Further, that each of the defendants was the agent of the other defendants in all of their respective actions, that plaintiff up to June 15, 1964, believed, trusted and relied upon each of the defendants in all representations and thereby did not file the present action until February 19,1965.
[687]
Defendants filed an answer to the complaint on June 14, 1965, wherein they generally denied all of the allegations of the complaint and affirmatively alleged “That the complaint on file herein and the alleged cause of action therein set forth is barred by the provisions of Section 337 of the Code of Civil Procedure of the State of California. ’ ’
The cause came on for trial on July 11 and July 12, 1967, before an experienced and learned judge. After hearing the plaintiff and her witnesses and the almost incredible testimony of O. L. daggers and other defendants’ witnesses the judge directed a judgment in favor of plaintiff and ordered findings. Extensive findings
A judgment was made and entered in conformity with the findings and conclusions of law. A timely notice of appeal was filed.
Appellants in their opening brief contend that the
[689]
statute of frauds barred the action and in effect that the evidence does not support the findings and the judgment. There is no merit to appellants ’ contentions.
[690]
This court is again called upon to state a rule which should be familiar, namely, ". . . the findings of fact of a trial court on conflicting evidence of a substantial character are conclusive, and ... an appellate court cannot examine the record to ascertain if the findings are supported by a preponderance of the evidence” and further "... the rule is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact, Accordingly, if as appellants contend, some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error assigned is deemed to be waived. [Citations.] ”
(Kruckow
v.
Lesser,
111 Cal.App.2d 198, 200 [244 P.2d 19].)
Here appellants have made no effort to comply with the rules of court and have failed to set forth the evidence of the matter under consideration. What is said in
Hickson
v.
Thielman,
147 Cal.App.2d 11, 14, 15 [304 P.2d 122], is particularly appropriate: "The first contention of defendants is that the findings are unsupported by the evidence. In this connection, we repeat what every lawyer should know, namely, that when an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.
". . . . Appellants have made no attempt to make a fair statement, or, indeed, anything approaching a fair statement
[691]
of the evidence claimed to he insufficient. Their failure to do so will be deemed tantamount to a concession that the evidence supports the findings. [Citations.] ”
Or as aptly stated in
Simon
v.
Simon,
260 Cal.App.2d 626, 631 [67 Cal.Rptr. 317]: " With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is
any
substantial evidence to support them; . . .’ [Citations.] Moreover, it is incumbent upon the appellant who contends that the evidence is insufficient to set forth the evidence in support of the judgment and indicate wherein it is insufficient. ’ ’
Appellants complain of errors in the record and then fail to refer this court to the specific places in the record where any such claimed error occurred and fail to point how or in what manner appellants were prejudiced thereby. If counsel is neglectful in their duty it is not the burden of this court to act as counsel for either party and we will not assume the task of making a search for error. (See
Fox
v.
Erickson,
99 Cal.App.2d 740 [222 P.2d 452];
Shaw
v.
McCaslin, 50
Cal.App.2d 467 [123 P.2d 102].)
With reference to the plea of the statute of limitations, it is clear that appellants failed properly to plead the statute. There are two ways of making such a plea, first by alleging all of the facts showing that the action is barred
(Adams
v.
Patterson,
35 Cal. 122;
Osborn
v.
Hopkins,
160 Cal. 501 [117 P. 519, Ann.Cas. 1913A 413]) and indicating that the lateness of the commencement of the action is being urged as a defense
(Hall
v.
Chamberlain,
31 Cal.2d 673 [192 P.2d 759]). The second method is stated in section 458 of the Code of Civil Procedure. It is necessary for defendant who pleads the statute of limitations to specify the applicable section, and, if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof. If he fails to do so the plea is insufficient. (See
Davenport
v.
Stratton,
24 Cal.2d 232 [149 P.2d 4];
Overton
v.
White,
18 Cal.App.2d 567 [64 P.2d 758, 65 P.2d 99];
Hopkins
v.
Hopkins,
116 Cal.App.2d 174 [253 P.2d 723];
Horwath
v.
Roosevelt Hotel Co.
118 Cal.App.2d 1 [257 P.2d 56];
Frustuck
v.
City of Fairfax,
212 Cal.App.2d 345 [28 Cal.Rptr. 357].) Section 337 of the Code of Civil Procedure has two subdivisions and defendants failed to specify under which subdivision of the section they allegedly come.
[692]
However, even if the pleading defect be passed over it is clear from the evidence and findings that defendants were estopped from asserting the statute of limitations as a defense. (See
Langdon
v.
Langdon,
47 Cal.App.2d 28 [117 P.2d 371];
Calistoga Nat. Bank
v.
Calistoga Vineyard Co.,
7 Cal.App.2d 65 [46 P.2d 246];
United States Cas. Co.
v.
Industrial Acc. Com.,
122 Cal.App.2d 427 [265 P.2d 35];
Berkey
v.
Halm,
101 Cal.App.2d 62 [224 P.2d 885].)
Appellants seemingly contend too that O. L. J aggers did not sign for or authorize the loan. The Church received the money and took all of the benefits. The officers of a corporation may bind the corporate principal by ostensible authority, and retention of the money by the Church is strong evidence either of a ratification of authority by the corporate principal or of an estoppel against the corporate principal to deny the lack of authority of the corporate officers. (See
Commercial Security Co.
v.
Modesto Drug Co.,
43 Cal.App. 162 [184 P. 964];
Curtin
v.
Salmon River etc. Co.,
141 Cal. 308 [74 P. 851, 99 Am.St.Rep. 75].)
In this case insofar as the record in this court indicates, none of the parties objected to the findings or conclusions of the court nor requested specific findings, we must resolve all conflicts and ambiguities in the findings (if any) in support of the judgment as well as infer logical and reasonable findings in support thereof. (See
Appellants also mention that the original note was not produced and only a copy was received in evidence. The Evidence Code provides for the very contingency which occurred in this ease and a copy of the note was properly received. (See Evid. Code, §1501.)
The evidence and the facts support the findings and the findings support the judgment.
The judgment is affirmed.
Lillie, J., and Thompson, J., concurred.
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment for the plaintiff, holding that the defendants failed to properly plead the statute of limitations and were, in any event, estopped from asserting it. Furthermore, the court held that the appellants failed to meet their burden of demonstrating that the evidence was insufficient to support the trial court's findings.
Issues
Whether the trial court's findings were supported by substantial evidence.
Whether the defendants properly pleaded the statute of limitations as a defense.
Whether the defendants were estopped from asserting the statute of limitations.
Whether the corporate defendant was bound by the promissory note executed by its officers.
Disposition. affirmed
Quotations verified verbatim against the opinion
“It is necessary for defendant who pleads the statute of limitations to specify the applicable section, and, if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof.”
“even if the pleading defect be passed over it is clear from the evidence and findings that defendants were estopped from asserting the statute of limitations as a defense.”
“The evidence and the facts support the findings and the findings support the judgment.”