Jonas v. Bank of America National Trust & Savings Ass'n

CONREY, P. J. In the complaint it is alleged that at some time prior to September 21, 1931, the defendant became indebted to Irving H. Heilman in the sum of $6,399.49, for and on account of money had and received by the defendant for the use and benefit of said Heilman in connection with the defendant’s trust No. 739 N. S. Plaintiff claims as assignee of Heilman’s rights to the fund. Judgment having been entered in favor of the plaintiff, the defendant appeals therefrom.

In accordance with the first paragraph of the “second and separate defense” stated in the answer of the defendant, the court found that at all times mentioned in the complaint, the defendant was and now is the trustee of a trust No. 739 N. S., in which Irving H. Heilman, the person mentioned in the complaint was beneficiary; that as trustee under the said trust defendant received the said sum of $6,399.49, which is the money mentioned in the complaint. Paragraph two of said second defense contains the following: “Alleges that on or about June 7, 1931, and prior to either of the assignments mentioned in the complaint herein, the said Irving H. Heilman, for valuable consideration, agreed with defendant that all of said money might be held by the defendant and applied by it upon the indebtedness of the said Harry W. Boles to this defendant, and assigned to this defendant as security for such indebtedness, all of the interest of the said Irving H. Heilman in and to the moneys.” The court found the allegations of this paragraph are not true. (Finding VIII.) Appellant contends that this finding VIII is not sustained by the evidence. Paragraph three [169]of the second defense alleged the said Boles was indebted to the defendant in- a sum far in excess of the sum in controversy here. In finding IX the court decided that this allegation was not, true, but it is now conceded by respondent that those allegations were true and that the finding IX is erroneous. The court also found against the defendant on the allegations of its paragraph four of the second defense wherein it was alleged that a part or all of said sum of money of $6,399.49 belongs to the said Harry W. Boles, and that defendant holds all of the said fund as security for the repayment of the said indebtedness of the said Harry W. Boles to it.

From the foregoing it appears that the merits of this appeal principally depend upon appellant’s challenge to the sufficiency of the evidence to sustain said finding VIII. The property covered by the. trust included a tract of land known as tract 9909, containing a certain “lot 4”. In October, 1927, Heilman agreed to “sell and convey” to Boles said lot 4, upon certain conditions, one of which was that Boles would erect upon the lot a residence to cost not less than $15,000; thereafter the property should be sold and out of the proceeds of the sale the first $20,000 should be paid to Heilman as the purchase price for his lot. The proceeds of the sale next received were to be used to repay to Boles the actual cost of the improvement made by him thereon; “all moneys received thereafter shall be divided equally between the first and second parties”. The house was built and the property was thereafter sold. The evidence does not establish the amount which had been received by Hellman out of the sale price. Appellant attempted to show that by reason of a certain mortgage, Heilman had in effect received his $20,000, but this was not the necessary result of that transaction. The evidence does not prove that the funds now in the trust and which are the subject of the present controversy were the property of Boles. The trust fund was not assigned to him; although as between Boles and Heilman their contracts gave to Boles an interest in the proceeds of the sale of the lot.