Heard v. Tate

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover the amount due on a promissory note. The defendant appeared and answered; a trial was had before the judge sitting without a jury, and from a judgment in favor "of the plaintiff the defendant has appealed under section 953a of the Code of Civil Procedure.

As stated by the appellant the record presents two points: First, was fraud proved or shown with respect to appellant; second, were certain findings supported by the evidence. Prior to the first day of June, 1921, C. R. Tate and J. E. Nichols were real estate agents. At that time Edith M. Heard, the mother of the plaintiff, was the owner of lands in the city of Santa Cruz of an alleged value of $45,000, mortgaged in the sum of $6,000: At the same time the defendant was the owner of lands in San Joaquin County of an alleged value of $20,000, mortgaged in the sum of $18,000. Thereafter J.-E. Nichols asked Mrs. Heard to employ him as agent to negotiate an exchange, which she did, and as a result of the employment her lands were exchanged for the defendant’s lands and a part of the payment was the promissory note for the face value of $1,000 which is involved in this case, and also a note and mortgage in the sum of $15,-000. After that transaction had been completed Nichols approached Mrs. Heard and undertook to negotiate another

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exchange. At this time Tate and Nichols were occupying the same office in Oakland. Nichols’ written authorization dated March 30, 1922, recited that Mrs. Heard was the owner of the above note and mortgage in the sum of $15,000, also a house and lot in Sunnyvale of the alleged value of $2,000, also a quantity of hay of an alleged value of $300, also the promissory note in the sum of $1000, which is the subject of this suit. One Eoddick was the owner of an apartment house known as 560 Thirty-third Street, in Oakland. J. B. Nichols at the same time owned some worthless real estate tracts of the face value of $7,000 or more. When the defendant offered the above-mentioned written authorization in evidence it contained a covenant authorizing Nichols to keep for his own use any portion of the properties owned by Mrs. Heard, which he was not compelled to turn over to Eoddick. Later Nichols reported to her that Eoddick would not accept the accrued interest on the mortgage note, $525; that he would not accept the promissory note, $1,000; that he would not accept the hay, $300; that he would not accept the Sunnyvale property, $2,000; but if she would transfer those items to him that he would turn over to Eoddick properties to make up the difference. She acted on his statement so made to her. She executed a deed to the Sunnyvale property to Nichols and Nichols erased the name of the grantee and inserted the name of the defendant. The promissory note in the sum of $1,000 was at Santa Cruz. Later Nichols told Mrs. Heard that owing to a business transaction which he had with this defendant he would like the plaintiff to execute a writing as follows: