Bradley v. Duty

MOORE, P. J.

Respondent sued appellant on three distinct theories in as many causes of action, claiming (1) her right to joint ownership in and title to a parcel of real estate; (2) $750 on account of services rendered at his request; (3)

[524]

$750 for money had and received by appellant to and for the use of respondent. The court found against her claims alleged in the second and third counts. Respondent evidently acquiesced in such findings, since no mention of them appears in the conclusions of law or in the judgment and no appeal was 'taken on that account. Remaining for review is the finding in response to the first count that in “April, 1944, plaintiff advanced .to defendant Samuel D. Duty the sum of $750 to be expended by said defendant for the purchase of real estate for the benefit of plaintiff and defendant Samuel D. Duty the title to said property to be in the name of Clara Bradley and Samuel D. Duty as joint tenants.”

Appellant, a single man, resided in the home of respondent from 1928 to April, 1944. She testified that for two years prior to the latter date she had paid $30 a month for rent and food; that the bills ran over $100 a month; that the cost of her support of him was $50 a month; that during those two years they had talked about. the purchase of a home and she told him she would pay the household expenses and he should save all of his earnings in order that they could have “a quick down payment”; that she paid the household expenses and he saved his own money. Finally, in April, 1944, without her knowledge he purchased an improved city lot and took conveyance to himself alone. She demanded that the title be placed in the two as joint tenants. He refused but continued to collect $100 monthly rentals. During the two-year period above mentioned she had a bank account in her name and he also had his own bank account. She further testified that they had been partners since 1928 and concluded to buy a home in 1938; that during 1942 and 1943 he paid her only small sums although during much of the time prior to 1942 he was incapacitated by virtue of a foot disease or heart trouble. However, in view of the finding against her claim of his indebtedness to her it must be deemed that his payments were full compensation for her services.

But if she was not fully paid by him for- food and lodging prior to the filing of this action it cannot be concluded that he held her money, in the absence of proof that she advanced the $750 to him or of an agreement that he was indebted to her in that sum and that he should invest the same. Where mutual current accounts have run between two parties or one holds a book account against the other it cannot be said that the alleged debtor has in his possession money for