Cooney v. Gray

WASTE, P. J.

The plaintiff brought this action, seeking to recover the sum of two thousand dollars, which she alleges she was fraudulently induced to loan to the defendants in July, 1908, and to have the amount decreed to be a lien upon property of defendants. The trial court found specifically in favor of the defendants. Judgment was entered accordingly and plaintiff has appealed on the judgment-roll alone, claiming that because of the failure of the defendants to deny certain allegations of the complaint, the answer became a negative pregnant, entitling plaintiff to judgment. No motion for judgment on the pleadings appears to have been made.

According to the allegations of the complaint, in July, 1904, respondents, one of whom is the daughter of the plaintiff, represented to her that they were married, in which belief the plaintiff remained until September, 1918. In June, 1908, so it is alleged, the respondents, learning that plaintiff had on deposit in a savings bank the sum of two thousand dollars, conspired to obtain the money from her. Accordingly, by means of undue influence obtained over plaintiff by reason of her trust and confidence in them, due to the supposed family relationship which she believed the defendant F. Gray bore to her, the defendants induced the plaintiff to let them have the use of the money, upon the promise that they would repay the same at the end of nine years, together with interest at the savings bank rate. This money, it is alleged, the defendants invested in a dwelling-house and lot of land in San Francisco, of which they are still the owners and upon which it is alleged they have declared a homestead. This alleged loan has never been repaid.

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In 1918 the plaintiff learned that in 1903, and for a long time theretofore, the defendant F. Gray had been married to a woman other than her daughter, and that in that year he had commenced an action against his said wife for a divorce. After due hearing the superior court awarded "said Gray, and there was entered, an absolute decree of divorce in his favor, although sections 131 and 132 of the Civil Code, requiring the entry of interlocutory decrees of divorce in such actions, were in force and effect.' The further allegation is that by reason of the refusal and failure of Gray to obtain an interlocutory decree of divorce from his said wife he never has been divorced; and that the defendants did not marry in July, 1904, but only pretended tó be married, and thereby deceived the plaintiff, in order to obtain an undue influence over her for the purpose of defrauding her out of the two thousand dollars.