Mix v. Yoakum

SHENK, J.

This is an appeal from a judgment dismissing an action on a claim against the estate of Finis E. Yoakum, deceased. A demurrer, general and special, to the amended complaint was overruled in one department of the trial court and the defendants answered. When the cause proceeded to trial in another department, a witness on behalf of the plaintiff having been sworn, counsel for the defendants objected to the introduction of any evidence on the ground that the said amended complaint did not state facts sufficient to constitute a cause of action. The objection was sustained, the plaintiff declined to amend, and the judgment of dismissal from which this appeal is taken was entered.

Briefly stated, the plaintiff alleges that prior to his death the decedent was a minister who claimed to be a divine healer; that the plaintiff had an invalid child who the decedent said was possessed of a demon, which he would drive out of the child by prayer; that plaintiff relied on the assurance of the decedent in that respect, was converted to the latter’s faith, attended his church and remained a communicant thereof until the death of the decedent, still having and retaining the greatest confidence in the integrity and benevolence of the decedent; that in May, 1906, the plaintiff was about to return to his old home in an eastern state because of his inability to obtain employment in California, of which fact, and also of the fact that the plaintiff had some funds on hand, the decedent became aware; that thereupon decedent represented to the plaintiff that if he would remain in California he would continue to pray for the plaintiff’s daughter, and that if plaintiff would deliver to the decedent the said funds the decedent and one D. M. McDonald would hold the funds for plaintiff “as a trust fund,” to be by them loaned to various persons such as they should select, and that such funds would earn not less than twelve per cent per annum; that they would pay the plaintiff such interest as his money would earn

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from time to time, and that they “would repay to him the principal at such time as he should demand the same”; that the plaintiff, because of the confidential relations existing as aforesaid, believed and relied upon the said representations, and so believing and relying he delivered to said Yoakum and the said McDonald checks, United States bonds and money aggregating $3,300 to be used by them in making said loans; that the said Yoakum and McDonald paid to the plaintiff interest on said sum of $3,300 at the rate of twelve per cent per annum, which they reported to the plaintiff was earned by said money, up to and until the fourth day of April, 1915; that there is now due from the said estate the sum of $3,300 with interest at the. rate of twelve per cent per annum from April 4, 1915, no part of which has been paid, except several items in the aggregate amount of $167.89, the last of which was paid September, 1917. It was further alleged that the said Finis E. Yoakum died testate on the seventeenth day of August, 1920, leaving an estate in the county of Los Angeles; that his will was admitted to probate and that letters testamentary were issued on April 4, 1921, to the defendants herein; that notice to creditors was first published on April 7, 1921, and that on the twenty-fifth day of the same month the plaintiff presented to the executors his verified claim for $3,300 plus interest thereon at the rate of seven per cent per annum from April 4, 1915, and that said claim was never allowed or rejected by said executors. A copy of the claim is then set forth, in which it is stated that the amounts therein specified aggregating the total of $3,300 were delivered to the decedent and said McDonald to be held by them in trust for the claimant and to be loaned by them for the claimant’s use and benefit. No action having been taken on said claim this suit was commenced on February 20, 1922, wherein it is prayed that judgment be rendered for the sum of $3,300, together with interest from the fourth day of April, 1915, at the rate of seven per cent per annum and for general relief.