Zeller v. Knapp

CRAIG, Acting P. J.

The defendants, as alleged trustees for the plaintiff and respondent, were by her paid certain moneys which they agreed to invest in an incorporated trucking business of which they were directors. It was also alleged by the plaintiff that the defendant and appellant, D. A. Knapp, an attorney and counselor at law, was at the same time her legal adviser; that he promised large returns upon said investment, the issuance of stock or investment certificates in their names as such trustees, the payment of plaintiff’s share of profits each month, and the refund of her principal together with any unpaid accrued interest, upon one year’s notice in writing; that the business was not profitable, that its returns were not as represented by appellant, and that no part of the same had been refunded. The defendants admitted receipt of the moneys for' investment, denying any misrepresentation as to volume of business or amount of returns, or that D. A. Knapp was then or at any time the plaintiff’s attorney, or that either of the defendants acted in any capacity other than as recipients of checks aggregating $6,000 for investment as directed by her. Defendant Knapp affirmatively alleged that “to the end of insuring the success of said investment to plaintiff, this defendant secured stock therein to represent her full

pro rata,

ever holding the same as her trustee; . . . that this defendant as said trustee has far exceeded the requirements in said trustees’ agreement set forth and has done everything humanly possible in the premises to conserve plaintiff’s investment and bring realization to plaintiff’s hopes therein; that at all times this defendant has been ready to turn over to plaintiff corporate evidence of the holdings of the defendants to and for the benefit of plaintiff according to the terms of said agreement, but plaintiff has never made demand therefor, either in writing or otherwise”. Findings of fact and judgment were awarded the plaintiff, and the defendant Knapp appealed from said judgment.

There is a sharp conflict of evidence, direct and circumstantial, from which the trial court found that appellant falsely and with intent to deceive and defraud the plaintiff, represented the trucking business as of a large volume and that its proceeds were enormous, and "that he made numerous

[488]

other fraudulent representations. This conflict alone pro-' eludes a contrary ruling upon appeal, even though as argued by appellant, such findings appear to be against a preponderance of the evidence, where they are, as here supported by some substantial evidence.