Lamkin v. Vierra

AGEE, J. Defendants appeal from a judgment on the pleadings holding that a deposit receipt agreement for the sale and purchase of certain realty was void, and that therefore plaintiffs were entitled to the return of their deposit and were not liable in damages on defendants’ cross-complaint.

Joseph Y. Yierra died intestate on July 14, 1946, and was at the time of his death the sole owner of the residential property located at 2521 East 27th Street, Oakland, California.

On April 11, 1959, plaintiffs, who are husband and wife, signed a regular form deposit receipt agreement agreeing to purchase the property for $9,100, and decedent’s daughter, Margaret B. Yierra, signed as the “Seller” with the title “Administrator” immediately below her signature. Plaintiffs paid her $910 at that time and agreed to pay the balance in six months.

On April 22, 1959, Margaret B. Yierra was appointed administratrix of the estate of her father. Thereafter, plaintiffs made demand for the return of the deposit.

On October 22, 1959, plaintiffs filed a complaint for return of the $910 against defendants “Margaret B. Yierra and Margaret B. Yierra, as administratrix of the Estate of Joseph Y. Yierra,” alleging her appointment and that “defendants and each of them received from the plaintiffs the sum of $910.00 for the use of plaintiffs. ’ ’ The answer, filed December 7,1959, was likewise by “Margaret B. Yierra and Margaret B. Yierra as Administratrix” etc. and expressly admits that [125]“said defendants received from plaintiffs the sum of $910.00 ...” (Emphasis added.)

In their closing brief, appellants call attention to the incongruity of a judgment against Margaret B. Yierra as an individual and also as an administratrix, particularly in view of the trial court’s holding that she was not qualified or entitled to act as an administratrix at the time of the receipt of the money. However, the answer admits that it was received in both capacities and she cannot now complain if the judgment orders both to return the money. Incidentally, the appellants’ closing brief contains the first mention of the point.

Appellants added a cross-complaint to their answer, again using the same dual designation of Margaret B. Yierra and alleging that cross-complainants have been damaged in the sum of $4,100 by reason of plaintiffs’ failure to pay the balance of $8,190.