Geiselman v. Campbell-Johnston

SHINN, Acting P. J. The second amended complaint in this action is denominated one for specific performance, accounting, establishment of a trust, and for damages for fraud. When the verbose and redundant allegations of its four separate causes of action are sifted for matter of substance, there remain only allegations to the following effect: that May Isabel Campbell-Johnston owned Tract No. 12955 in the city of Redondo Beach, county of Los Angeles, State of California, consisting of 187 town lots; that on or about March 18, 1943, she agreed in writing to sell the tract to plaintiff for $14,600, of which $600 was to be paid in cash and the balance by assumption of a trust deed indebtedness on the property of $14,000; that plaintiff paid said defendant $600, demanded a conveyance, which was refused, and that plaintiff has been damaged in the sum of $37,400. It was also alleged that said sum of $600 was paid to defendant Cheroske,. acting on his own behalf and on behalf of Campbell-Johnston and certain other defendants, and that Cheroske, so acting, promised that defendants would give plaintiff an option to purchase said [494]land for the sum of $14,600, payable as aforesaid, that Cheroske delivered the sum of $600 to defendant Campbell-Johnston, that defendants refused to give the option, to plaintiff’s damage, as aforesaid, and that defendants have sold and are proceeding to sell the lots in the tract to other persons. The other defendants named were alleged to claim interests in the property. The prayer is for specific performance of the agreement, for an accounting, for the establishment of a 6/170ths interest in said tract and another tract of land, and for damages. The separate answers of defendants admitted ownership of the land by defendant Campbell-Johnston and contained complete denials of the material allegations of the complaint which we have stated. It was further alleged that since on or about March 13, 1943, lots in the tract had been sold to various and sundry purchasers, many houses had been built and other improvements made thereon, all with the knowledge of plaintiff, and that plaintiff had made no claim to the land or an interest in it until the filing of his complaint, March 1, 1946. The answers of Cheroske and Campbell-Johnston admitted the receipt of $600 from plaintiff and alleged that defendant Campbell-Johnston had previously advanced to plaintiff $1,250 and that the $600 was paid upon said indebtedness and for no other purpose.

At the trial plaintiff was represented by an attorney who was called into the case shortly before the trial, without an opportunity to familiarize himself with the issues to be tried or the evidence. At a result the court was exceedingly indulgent and allowed the trial to proceed for five full days. Plaintiff produced no written agreement or option for purchase of the property and no evidence in support of the claimed purchase except his own, uncorroborated, testimony which was sharply contradicted by the evidence of defendants in every material particular. After the appeal was taken, plaintiff substituted other counsel to represent him.