Broder v. Conklin

GAROUTTE, J. Greenly, assignee of Broder, an insolvent debtor, sold at public sale, in bulk, the property of the insolvent, consisting of a large amount of'realty and personalty, to A. R. Conklin, the attorney for the assignee. The creditors, by a bill in equity, now seek a judicial decree to the effect that the property purchased by Conklin at the sale be held in trust by him for their benefit. The relief sought is based upon the claim of the existence of a trust relation between Conklin and the creditors, and they rely both upon an express trust and a constructive trust. At the trial a vast amount of evidence was taken to support and overthrow these respective positions. And, as a result, the creditors were defeated all along the line, the trial court finding the facts against them. This appeal is now prosecuted from the judgment and order denying their motion for a new trial.

Counsel for appellants declare their main contention to be that the evidence is insufficient to sustain the findings of fact made by the trial court. And to the consideration of this question, as bearing upon the existence of an express trust, this court will first address itself. Conklin was an attorney at law and attorney for the assignee. It is claimed by appellants that prior to the time set for the sale he entered into an express understanding and agreement with them to the effect that he

[284]would purchase the property at the sale, for their benefit, take possession of and manage the same to their interest, and eventually satisfy their claims from the proceeds thereof. It is conceded that the trust agreement relied upon arose in parol, but it is contended that a part performance thereof relieved it from the effect of the statute of frauds. There is evidence to support these contentions, and findings of fact to that effect would not have been disturbed by this court. It may be said that the evidence preponderates that way. Still, conceding all this, it does not follow that the finding of fact to the contrary ■should be set aside. Notwithstanding the evidence, as it appears to us, may preponderate against the truth of the finding, still a preponderance of evidence is not inconsistent with the ■existence of a substantial conflict in the evidence. It is said in Grant v. McPherson, 104 Cal. 167: “Upon a question of the character here presented this court cannot say that the evidence of two witnesses or. of three witnesses must as to certain facts overthrow the evidence of one witness testifying to a contrary state of facts.” Indeed the trial court is not bound to decide in accordance with the testimony of the greater number of witnesses. The question here presented is, Does this evidence present a substantial conflict as to the fact? And the question as to the presence of a substantial conflict is in no way dependant upon a great number of witnesses upon the one side, and a limited number upon the other, for it often occurs that one shall prevail against the many. The defendant Conklin was a witness in his own behalf, and the all-important witness to disprove the charges made by the creditors. He testified directly and positively that no sort or semblance of an agreement or understanding was ever entered into by him with the creditors to purchase the property for their benefit. But that, upon the contrary, he purchased the property openly and avowedly, for his own personal benefit alone. As indicated by the findings of- fact, the trial court believed his statements of these matters and disbelieved all of the evidence contradictory thereto; and to get at the truth in the light of this contradictory evidence was essentially the duty of the trial court. As to the rule in such cases, it is said in Grant v. McPherson, supra: “Evidently his testimony was believed by the jury and by the court, and,