Bailar v. Yewell

STURTEVANT, J.

The plaintiff commenced an action against the defendants to impress a trust on a lot in Los Angeles County. The defendants A. E. Yewell and Alice K. Yewell answered. The defendant A. O’Connell did not an

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swer and her default was entered. The trial court made findings in favor of the plaintiff and from a judgment entered thereon the defendants have appealed. The defendants make several attacks on the findings, but all of those attacks are but different methods of presenting the contention that plaintiff’s money did not go into that portion of the land, called by the defendants the key lot. The record discloses that the plaintiff and the defendants had been friends for several decades. The plaintiff resided in the east. The defendant A. E. Yewell resides at Southgate in Los Angeles County and is engaged in the real estate business. In July, 1924, the plaintiff sent her draft in the sum of $900 to Mr. Yewell with directions to invest the same in real estate. Thereafter he made two. executory purchases. Under one contract he undertook the purchase of the south 115 feet of the lands described in the complaint, and in the other contract he undertook the purchase of what he calls the key lot, the north 40 feet of said lands. He made his contracts with Clark and Wagner. .They held an executory contract to purchase both lots, described as one, from Bessie Spring, who was the owner. At the trial it was admitted by the defendants that the plaintiff’s money was received and was used in making payments under the first contract. However, it was the contention of the plaintiff that said moneys were used in making both purchases. The plaintiff contends that the total payments made aggregated exactly $900 and no more. The defendants claim that the payments aggregated $1242.64. If the contention of the plaintiff can be sustained by the evidence contained in the record, in support of the judgment of the trial court, we are bound to adopt her contention. The plaintiff called the defendant A. E. Yewell and under a searching examination the witness produced three checks which represented moneys paid out on the purchase of the lots. On the first contract he claimed that he paid down $50. On the second contract he claimed that he paid down $150. The latter sum was also evidenced by one of the checks just mentioned. He testified that he had no checks or receipts showing the disbursement of the $900 except payments indorsed on the back of the contracts, and the checks introduced in evidence. He testified that the most of the payments made by him were paid in cash and were indorsed on the executory contracts as the payments