People v. Brown

ADAMS, P. J. This is an appeal by the People from an order granting defendant a new trial, after conviction by a jury. The amended information upon which defendant was tried charged him in two counts with grand theft, the first count alleging that on February 19,1946, by false and fraudulent representations defendant obtained $300 from H. M. Weil, and the second count, that on March 7, 1946, by the same means defendant obtained $500 from the same person.

On December 7, 1945, Weil and defendant Brown entered into a contract by which Brown agreed to construct for Weil in Lodi a one-story garage building for $21,000, payable in five installments as specified portions of the building were completed. With the contract an escrow arrangement was made with a bank, by which all material bills for the job would be approved and presented by Brown, and thereupon paid by the bank; all cheeks were to be made payable to Brown and the vendors, jointly; all labor on the job was to be paid weekly upon presentation of contractor’s statement of total accrued weekly payroll, check to be made payable to the contractor, Brown; sufficient funds were to be kept in the escrow deposit so that the accrued payrolls would be paid immediately upon presentation as aforesaid; written statements of material charges accompanied by copies of invoices and labor disbursements were to be made and filed with the bank; no payments were to be made to Brown in excess of the designated periodic draws as specified in the agreement. The contract, however, also provided that in the event that shortages of material became imminent, and, by making purchases in advance, delay in construction could be avoided, it was Brown’s prerogative to make additional draws to cover such contingencies, upon approval by Weil.

The evidence indicates that Brown was insufficiently financed to carry on this and other construction jobs which [385]he had undertaken, and that he was also embarrassed at his inability to purchase necessary materials. Eventually Weil cancelled the contract.

Regarding the $300 which defendant is charged with having secured by false and fraudulent representations, the evidence shows that it was advanced by Weil on representations by Brown that he had an opportunity to buy nails—a particularly scarce commodity—from a Naval Supply Depot. He asked for an advance of $750 for this purpose, but Weil agreed to an advance of $300 only. Thereupon defendant purchased 58 kegs of nails for $200, and the nails were delivered to and stored in defendant’s warehouse. Weil admitted that he knew at the time he approved the advance that $300 worth of nails would not be required in the construction of his own building. The evidence also shows that at the time of the cancellation of defendant’s contract by Weil, 27 kegs of the nails were still in defendant’s warehouse, some having been used on the Weil job, and some on other jobs.