McCown v. Mendenhall

RICHARDS, J. pro tem.* In this action for money had and received, defendant had judgment and plaintiff appeals.

At the pretrial it was stipulated that on October 15, 1956, plaintiff caused to be issued his cheek for $16,000 payable to the order of the defendant, who signed a written receipt therefor, and that said sum has not been paid to the plaintiff by defendant or by anyone on his behalf.

In the trial the plaintiff contended and offered evidence to prove that the delivery of his check to the defendant was a personal loan to the defendant or, if not a loan, it was money paid to the defendant upon a solicitation for the sale of unauthorized securities in violation of the Corporate Securities Act.

Upon conflicting evidence the court found that the delivery of the cheek to the defendant was not a personal loan to the defendant but that the plaintiff delivered the check to the defendant for the purpose of his delivering it to the Boulder Club, a gambling casino in Las Vegas, Nevada; that pursuant to said purpose defendant took the check to Nevada, endorsed it and delivered it to the operator of the Boulder Club who cashed the check and added the proceeds [405]to the cash assets of the club and caused a certificate of stock to be issued therefor. The trial court further found that the defendant did not solicit the plaintiff to purchase the stock nor to invest in the Boulder Club but that the plaintiff sent the check by the defendant to the Boulder Club as plaintiff’s investment therein and that in making delivery of said check to the Boulder Club, the defendant was acting at the plaintiff’s request and as his agent.

Plaintiff, as appellant, contends: (1) The evidence does not support the findings; and (2) the findings do not support the conclusions and judgment.

Neither contention is tenable.

We are governed in this review by the frequently stated principle that where the evidence is in conflict the court will not disturb the findings. The presumption being in favor of the judgment, the reviewing court must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment. When findings are attacked as being unsupported, the power of the reviewing court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the findings.