Feeny v. Smiley

JAMISON, J.,

pro

tem.

The main contention of the appellants on this appeal is that the evidence is not sufficient to support the judgment.

It is admitted that on the twenty-fifth day of April, 1927, defendant William F. Smiley was, by written instrument, appointed the trustee of plaintiff to receive for her certain money amounting to $8,500 from Orson L, Early, and that on or about the fifth day of August, 1927, the appellant William F. Smiley had in his possession, as such trustee, under said written instrument a sum in excess of $1500, which he had received from the said Early.

[598]

There was evidence produced 'on the part of plaintiff to the effect that she reposed confidence and trust in appellant William F. Smiley, and for that reason had appointed him her trustee; that on or about the fifth day of August, 1927, appellant William F. Smiley represented to respondent that he was in trouble with one Minnie Handley to whom he had sold a tract of land for $5,250; that she was suing him for the return of her money; that he desired respondent to help him out of said difficulty by buying said tract of land, and that if she would do so, he would sell the same within a short -time and make her a profit,. or that if he failed to sell the land in a short time he would return her money. He further stated to her that he had enough money in his hands, as trustee, to make á down payment of $1500 for her.

Respondent informed Smiley that she did not want the property and did not wish to buy it, but was willing to help him temporarily, if he could sell the land within a short time, so that she would be repaid her money, and failing in that he would return her money and upon the assurance of Smiley that he would do so, she agreed to purchase the property; that the purchase price was $5,250 upon which the $1500 held by Smiley, as trustee, was applied and two notes for $2,000 and $1750 were signed by respondent in favor of Jennie Smiley and same were secured by two deeds of trust aggregating the sum of $3,750; that respondent was induced to enter into said deal and make the purchase of said property solely by reason of the representations made to her by appellant Smiley, and that but for said representations she would not have purchased it.