People v. Gloster

DORAN, J. After trial before a jury, appellant was convicted of grand theft in stealing $8,700 from Edward and Violet Kahn on or about June 22, 1949. Three other similar counts, charging different dates of alleged theft, had been dismissed before trial. After conviction defendant was granted probation for a period of four years.

Appellant, a general building contractor, entered into certain contracts with Mr. and Mrs. Kahn on January 4, 1949, whereby appellant was to construct three residences on property located at the corner of Beverly Boulevard and Highland Avenue, and at 601 and 607 Seward Street, in Los Angeles. Appellant was to receive a flat sum for the houses, the total of which was $43,500, to be paid in five equal payments as the work progressed.

Mr. and Mrs. Kahn, the complaining witnesses, made four of the five progress payments, each in the amount of $8,700, [873]during which period the parties appear to have been on friendly terms. After making the fourth of such payments appellant was discharged; thereafter the Kahns completed construction of the buildings and sold the same.

There is evidence that a faithful performance bond had been discussed by the contracting parties but such practice was not followed. Later, although no such provision was incorporated in the contract, the appellant contractor agreed to and did present to the owners, certain affidavits prior to receiving the progress payments, certifying “that all materials and labor have been paid for that have been incurred at the three locations.” The last of these affidavits making such statement, dated June 22, 1949, acknowledges receipt of the fourth payment “for the installation of plumbing fixtures, roof tile, interior and exterior plaster, wall and floor tile board, sash and doors.”

At the time this last affidavit was presented and the fourth payment made, there was some discussion between the parties and Mr. Burke, a friend of the Kahns, with regard to whether bills had been paid, and appellant stated that all bills were paid except a few small disputed ones which would be taken care of. Mr. Kahn then gave appellant the fourth payment of $8,700. There is a conflict of evidence as to whether the Kahns examined certain bills and receipts at that time.

The following bills incurred in May, 1949, previous to the appellant’s presentation of the affidavit, were never paid: roof tile, $1,414.92; electrician, extra work, $88.25; sash and windows, $1,676.17, on which item there was given a $98 credit for returned merchandise. Lumber, delivered prior to June 1,1949, in the sum of $738 was unpaid on June 22, 1949, the date of the affidavit. Likewise, concrete work done prior to the same date, in the amount of $1,639, was not entirely paid for on that date.