Atkinson v. Boynton

BURROUGHS, J.,

pro tem.

This is an action by W. L. Atkinson, doing business under the fictitious name and style of W. L. Atldnson & Company, as plaintiff, against F. H. Boynton, as defendant, to have a trust declared in favor of the plaintiff in a certain promissory note and deed of trust, to the extent of $5,000. Said note and deed of trust standing in the name of said defendant.

In so far as it is material on this appeal, the complaint alleges that on or about the twelfth day of January, 1925, D. H. and Rebecca I. Arakelian made, executed and delivered to the defendant an interest-bearing promissory note in the sum of $45,000 and, as security for the payment thereof, executed a deed of trust in favor of the defendant covering certain lands situated in the county of Santa Clara.

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It is further alleged that $40,000 of the consideration for said note was furnished by the defendant and the remaining $5,000 by the plaintiff; that ever since the execution of said note and deed of trust the defendant has held and still holds the same in trust for the plaintiff to the extent of $5,000, with the accrued interest upon said last-named amount, but that the defendant refuses to acknowledge plaintiff’s interest therein and claims to be the sole owner and holder of said note and deed of trust and of all sums of money due or to become due thereon. By a supplemental complaint it is alleged that since the commencement of this action the promissory note has been paid in full and $5,000 and interest on said sum has been deposited in escrow to satisfy any judgment rendered in this action.

The answer of the defendant denies that plaintiff has any interest in said note or deed of trust or the money due thereon, denies that defendant holds the same in trust for plaintiff and admits that he claims to be the sole owner thereof and entitled to all sums of money represented thereby.

The court rendered judgment for the plaintiff and the defendant appeals.

During the progress of the trial of the action the plaintiff offered, and, over the objection of the defendant, the court admitted, parol evidence that the plaintiff acted as a real estate broker in negotiating an exchange of lands between the defendant and the Arakelians. That in the transaction the defendant took the note above referred to and the deed of trust on the land the defendant was transferring to the Arakelians to secure the payment of said note. That plaintiff’s commission in the transaction amounted to the sum of $3,000 from each one of the parties. That to finance the deal it was necessary that the Arakelians raise the sum of $45,000. As they were unable to do so, and to carry the exchange through, the defendant assumed a mortgage of $25,000 on the property which he was obtaining from the Arakelians and further advanced them the sum of $17,000. That of the latter amount $2,000 were commissions due from the defendant to the plaintiff and the balance of $3,000 was the commission due from the Arakelians to the plaintiff. The defendant paid plaintiff the balance of $1,000 due as commissions in cash.