Santos v. Santos

FILES, J. This action to recover money obtained by fraud was tried before the court sitting without a jury. Plaintiff recovered a judgment, from which defendant has appealed.

The transactions in question took place in May 1959. The parties married on May 2, 1959, and separated on June 11, 1959. The complaint alleges that on May 6, plaintiff husband withdrew $4,000 from his savings account and turned it over to defendant wife; that on May 11 he withdrew the balance of $1,651 from his account and delivered it to her; that she induced him to do this by representing that she would invest it for him when in fact her intention was to convert the money to her own use. The answer of defendant admitted receipt of the money but denied the other allegations. As an additional defense and by way of counterclaim, [232]defendant alleged that plaintiff had become indebted to her in the sum of $7,100 for money lent, and that no part of that sum had been repaid except $5,651.

At the trial plaintiff testified that before the marriage defendant had told him that she owned several pieces of property and that she would sell him a house on Woodland Street which he ‘‘ could turn around and sell ... for a thousand dollars profit.” This property, which was then subject to a first trust deed, was quitclaimed to plaintiff. The $4,000 was paid to defendant for the equity. Defendant then arranged a sale of the property through an escrow which closed May 18, 1959. The proceeds of the sale consisted of a second trust deed note payable to plaintiff in the amount of $4,500 and a check payable to plaintiff in the amount of $566. While the escrow papers were being signed, defendant tricked plaintiff into signing an assignment of the note to her by telling him that the paper was a loan application. She asked him to endorse the check and give it to her so that she could deposit it in their joint account. He complied, but she never deposited the check in that account.

Plaintiff testified that on May 11 he withdrew the $1,651.99 balance from his savings account and placed it in a joint account with defendant, who promised to deposit an equal amount. She said, “Just trust me and I will make us a lot of money.” The bank records disclose that instead of putting in money, defendant on June 5 withdrew plaintiff’s deposit and placed it in a new account which she opened in her former name, ‘ ‘Lola Stark. ’’

Defendant testified that plaintiff was indebted to her for various transactions, but she was unable to produce any checks, receipts, or other corroborating records. She said she had deeded the Woodland house to him as a gift, that he had given her the $4,000 as a partial repayment of his debt to her, and that the $4,500 trust deed and the $1,651.99 cash payment were gifts to her. Her testimony conflicted with statements she had made in a deposition and in her pleadings in the divorce case between the parties. It was shown that she owed thousands of dollars to other persons at the time she claimed to have been advancing money to plaintiff.