Naylor v. Peters

ARCHBALD, J., pro tem. From a judgment in favor of defendant entered on the verdict of a jury in Ms favor upon direction of the court, plaintiff has appealed.

Prior to February, 1929, plaintiff was the owner of an apartment house in Oakland, encumbered by a first trust deed and upon which she herself had placed a second trust deed. The El Merrie Del Corporation (apparently owned or controlled by defendant) owned some lots in Los Angeles County. A deal was made by which plaintiff exchanged her apartment house for certain notes secured by trust' deed on an agreed number of said lots.- The lots were deeded by defendant to one Noble, who executed the notes and trust deeds. Plaintiff executed a deed to her apartment house in blank and delivered same to one McDonnell, who caused to be inserted therein the name of one Janssen, who in turn with his wife executed a deed to defendant. The taxes, interest, insurance and rents on and from said apartment house were to be prorated as of February 1, 1929, “out of escrow’’. Plaintiff paid the amounts required of her to settle her share thereof to Mr. McDonnell, through whom the deal was made, plaintiff’s son, Nathan A. Naylor, representing her by power of attorney. McDonnell testified that he in turn paid said sums to defendant. Defendant employed plaintiff to manage the apartment house at an agreed salary. The owner of the second trust deed thereon, not receiving his interest, asked plaintiff for it. Finding that defendant was the new owner of the apartment house and that plaintiff had paid her pro rata portion of the interest in making the deal, he wrote defendant, requesting payment. Plaintiff sent defendant a check for the rents collected up to March 17, 1929, less expenses and salary, amounting to $684.03. Plaintiff’s son met defendant accidentally in Los Angeles about that time and says he asked defendant why he did not “pay our interest and taxes that are due on our first and second trust deeds . . . due to the fact that you have received the money which, according to Mr. McDonnell, has been given you, amounting to some[246]thing like $3400.00”, and that defendant replied, “It is none of your - business when I pay that interest or when I pay the taxes.” This conversation was communicated to plaintiff by her son, and on his advice she stopped payment of the rent cheek “until this thing was threshed out by our attorney, Mr. Soren Christensen”. The son had another conversation with defendant the latter part of March, in which defendant asked why payment of the check had been stopped by the mother, and at that time defendant was told that it was on the son’s instruction. Mr. Naylor testified that defendant then said that “if my mother did not send that . . . money on to him immediately he would go up and have her arrested”, and that he then told defendant “that we would continue to hold that money and we would continue to hold other money, collect all the rents, until such time as the thing was settled, and if it was settled we would be only too glad to turn that money over to him upon demand, but upon the advice of our counsel, Mr. Christensen”.