Enoch v. Lothrop

ROTH, J. This action as filed, was against respondent Doris Lothrop, respondent’s mother Lena Borman (Borman) and some Does as defendants, for damages. The complaint alleged among other things that respondent consented to and did on April 3, 1962, accept as a gift, with intent to defraud appellants, a written assignment of a promissory note and deed of trust from Borman, who had prior thereto, to wit: on March 13, 1962, entered into a written contract with appellants wherein it was provided that the note would be satisfied in a manner entirely different from the terms set out on the face of the note.

Respondent moved for summary judgment. The motion was granted. The appeal is from the summary judgment.

There is no evidence in the record to show that respondent knew of Borman’s contract of March 13 with appellants. It is also clear that appellants did not know of the assignment from mother to daughter until on or about August 15, 1962.

The affidavits filed by respondent in support of her motion for summary judgment disclosed the following uncontradicted facts:

The note and trust deed originally dated August 10, 1961, were, as indicated above, gratuitously assigned to respondent on April 3, 1962. On August 15, 1962, appellants contacted respondent who resided in Sacramento and expressed a desire to pay the note in full. Pursuant to appointment made in the telephone conversation referred to, on August 17 respondent met appellant Sehorin in Sacramento. Respondent refused a request for a discount of the interest on the note and a discount in the amount of the plane fare. The parties then entered into an escrow providing for the reconveyance of the deed of trust upon payment of the face value of the note. Appellants did not advise respondent of their contract dated March 13 with Borman, and at no time suggested to respondent that the note be satisfied in any manner other than as required by the note. At no time was any demand made upon respondent by appellants or anyone else to do anything except place the promissory note and deed of trust in escrow so that the note could be satisfied. Respondent denied knowledge of the agreement of March 13, [426196]2, or of any agreement between appellants and defendant Borman.

In opposition to the showing of respondent, appellants filed a number of declarations. By declaration of Herbert Enoch, which for all practical purposes summarizes appellants’ factual position, it is declared that Borman made the assignment referred to in bad faith (to relieve herself of the obligation of the March 13th contract). Enoch declares further and respondent admits that when respondent notified appellants of the assignment and demanded the interest due on the note, she made no mention of the fact that she was the daughter of Borman and had received the note and trust deed as a gift. Enoch also asserted that in a telephone conversation between appellants’ attorney and respondent, respondent stated that she was the purchaser of the note. Enoch declares that in that same conversation an offer was made to pay the face value of the note and arrange an escrow and work out the details for a reconveyance of the property described in the trust deed.