Melvin v. Mortgage Guarantee Co.

CRAIL, P. J. This is an action in damages for fraud and deceit under section 1572 of the Civil Code. The appeal is from a judgment in favor of defendant. Plaintiff Melvin was the owner of a house and lot against which she executed a trust deed in favor of defendant to secure the payment of a promissory note in the sum of $7,500.- Later she conveyed the property to plaintiffs Cubberley, subject to the trust deed, for the purpose of securing the payment of $5,000. Thereafter default was made in the payment of principal and interest on the defendant’s note and trust deed, and the property was sold at trustee’s sale to the defendant for $5,000, although the amount due at the time was $8,526.25. Defendant thereafter sold the property for $10,250. The contention of the plaintiffs in the trial court was that at a time prior to the foreclosure sale, they offered to pay the defendant $225 to apply on the indebtedness due the defendant, and the defendant promised and agreed to and with the plaintiffs that, in consideration of the plaintiffs’ forbearing to pursue other means of refinancing then in progress and permitting defendant to foreclose the trust deed, the defendant would purchase the property at the trustee’s foreclosure sale and re[71]sell the same to appellants for the amount of the indebtedness then due to the defendant, plus interest and expenses of foreclosure ; and that the plaintiffs believing and relying upon the said representations abandoned steps then being taken to remove a certain cloud from the property and to refinance and pay off the indebtedness against the property, which objects the plaintiffs were then able to accomplish and which, but for defendant’s promise and representations as aforesaid and the plaintiffs’ reliance thereon, plaintiffs would have accomplished; that thereafter the plaintiffs presented themselves at the office of the defendant and informed defendant of their readiness and ability to proceed with the repurchase of the property, whereupon the defendant refused to sell the property to the plaintiffs in accordance with said representations and promises, all to plaintiffs ’ damage.

The first contention of the plaintiffs on appeal is that the findings of fact are contrary to the evidence. In behalf of this point the plaintiffs attempt to try the case de novo in this court and content themselves with setting out the evidence in favor of their allegations. Nowhere do they attempt to set out all the evidence tending to sustain the findings. This court is not a fact-finder and is not a weigher of evidence. When such a question is raised it is our duty to examine the record to see if there is any substantial evidence to support the findings of the trial court, and if there is such evidence the examination ceases. (2 Cal. Jur. 918.) It is sufficient to say that there is substantial evidence to support the findings of the trial court.