Bliss v. Martin

169 P.2d 61, 74 Cal. App. 2d 500, 1946 Cal. App. LEXIS 1001

• Court: California Court of Appeal
• Decided: May 16, 1946
• Docket: Civ. 12745
• Status: Published

Opinions

WARD, J.

This is an action wherein appellant seeks to recover from respondent, as constructive trustee, certain funds, originally the property of Lulu H. Coffin, deceased, placed by said Lulu H. Coffin, formerly Lulu H. Montgomery, in joint tenancy with plaintiff, Chas. A. Bliss. The appeal is presented in the form of a bill of exceptions with a stipulation to the effect that the evidence, minute orders, etc., contained therein, are true and correct.

The bill of exceptions contains the following: “Plaintiff was duly sworn and testified that he was the plaintiff in said action; that he was an attorney at law, and had been such for over forty years; that he had known one Lulu H. Montgomery during all of that time, and had acted as one of her attorneys from 1911 until her death, on September 8th, 1937, and that a confidential relationship existed between them during most of said time; plaintiff residing at Sacramento, California, and she at Oakland; that said Lulu H. Montgomery at various times informed plaintiff that for services rendered and to be rendered by plaintiff she desired to create joint tenancy bank accounts between herself and plaintiff and did cause certain joint tenancy bank accounts to be established by the execution by both of said persons of written agreements, and the deposit of moneys in bank in said joint accounts.

“That on July 17, 1926 said Lulu H. Montgomery, also known as L. H. Brown, owned and possessed herself alone in the name of L. H. Brown, a savings account No. 92674 in the Central Bank of Oakland, and which said account No. 92674 was created and opened in said Central Bank in herself alone under the name of L. H. Brown on August 5, 1921 with an initial deposit of $7243.00; that the balance in said savings account No. 92674 on July 17,1926 was the sum of $14,563.45. ” The account in accordance with a new local bank system was changed and transferred on July 17, 1926, to account No. 42,950. It should be noted that Lulu H. Coffin, in the real estate business, over a number of years opened savings accounts with different relatives and friends under various assumed names. The names assumed by the joint tenants generally bore some resemblance to the true names of the parties. Whether this procedure was for tax or other business purposes is of no consequence in the outcome of this ease, except in tracing various accounts. Plaintiff knew that Lulu H. Coffin used various names as three other accounts were opened with him under the names of Lulu H. Montgomery, L. H. Brown and Hannah Brown. These accounts likewise provided that the money might be withdrawn by either party without reference to “original ownership.” Other accounts in other banks were opened with plaintiff. Some of the accounts were closed out prior to the death of Lulu H. Coffin, and some were subsequently paid by the banks to appellant Bliss.

The bill of exceptions relates: ‘ ‘ That on June 27, 1927 said Savings Account No. 42950 was changed from a single account in said name of L. H. Brown to an account in the names of L. H. Brown or Chas. A. Bliss in joint tenancy. That plaintiff’s Exhibit No. 1 consists of two separate and distinct signature cards affecting said Account No. 92674 transferred by said Central Bank on July 17, 1926 to said new Savings Account No. 42950, and a Deposit Agreement affecting said new Savings Account No. 42950 dated June 27, 1927 and signed by said L. H. Brown and said Chas. A. Bliss. ...” The deposit agreement provided: “All moneys now or at any time deposited by us or either of us, with Central Savings Bank of Oakland, to the credit of the above account, are and shall be so deposited by us and received by it upon the following terms and conditions of repayment, namely; that the amount thereof and all dividends thereon shall be paid by Central Savings Bank of Oakland, to us or either of us, or to the survivor of us, or the executors, administrators or assigns of such survivors; or upon the written order of any such person so entitled to payment; and without reference to the original ownership of the moneys deposited. ’ ’

The bill of exceptions continues: “That on May 27, 1929 said L. H. Montgomery, also known as L. H. Brown, without the knowledge or consent of said plaintiff, withdrew from said Savings Account No. 42950 the sum of $17,714.94 and thereby closed said Account No. 42950. That at no time did said plaintiff deposit or contribute to or withdraw any moneys from said Account No. 92674 which was changed by said Central Bank on July 17, 1926 to said Account No. 42950, nor did said plaintiff at any time deposit or contribute to or withdraw any moneys from said Account No. 42950; that on May 27, 1929 said Lulu H. Montgomery owned and possessed a joint savings Account No. 31104 in said Central Bank in the name of herself, Lulu H. Montgomery, or Fannie Frances Alpi, her sister, and which said Account No. 31104 was created and opened by said Lulu H. Montgomery with said bank in the manner aforesaid on October 9, 1928 with an initial deposit of $50.18 and that on- May 27, 1929 said Lulu H. Montgomery, without the knowledge or consent of plaintiff, deposited in said Savings Account No. 31104 the said sum of $17,714.94 which she had withdrawn on May 27,1929 from said Savings Account No. 42950. That plaintiff had full faith and confidence in said Lulu H. Montgomery and never inquired at the said Central Bank to ascertain if said Lulu H. Montgomery had withdrawn any of said funds from said Account No. 42950 although plaintiff at all times could have inquired into and examined said Account No. 42950 to ascertain if said Lulu H. Montgomery had withdrawn any funds therefrom. ...”

Lulu H. Coffin had joint bank accounts with other persons than plaintiff. Some of the names appear as Laura Frances Dunnigan, Laura Alpi and Fannie Frances Alpi. The accounts were closed out by Lulu H. Coffin under whatever name she used.

The hill of exceptions further sets forth “That at the time of the death of said Lulu H. Montgomery, to-wit: on September 8,1937, said Lulu H. Montgomery owned and possessed a joint savings account No. 78410 with said Central Bank under the name of Jean Watts or Irene Martin, defendant herein, which Account No. 78410 was created and opened by said Lulu H. Montgomery with said bank in the manner aforesaid on July 3, 1935 with an initial deposit of $5000.00, and that the balance in said account No. 78410 on September 8, 1937 was $8225.74.” Similar accounts with defendant existed at the time of the death of Lulu H. Coffin with the joint tenants listed as “Fannie A. Brown or Jennie Miller,” “Lulu B. Anderson or Ruth Rogers,” “Lulu A. Anderson or Ruth Rogers,” “Jean Watts or Jennie Miller,” “Fannie A. Brown or Ruth Miller.”

Standing in the names of decedent and defendant as Fannie A. Brown or Ruth Miller was a joint safe deposit box at the Central Bank. The bill of exceptions states: “That on September 16, 1937 said safe deposit box No. 13726 at the request of said plaintiff, as aforesaid, was opened and its contents seen by John R. Cher, deputy treasurer of said Alameda County and said plaintiff, and plaintiff testified that at that time, to-wit: September 16, 1937, he first learned that said Account No. 42950 had been closed by said Lulu H. Montgomery.

‘ ‘ That on September 16, 1937 there was among the contents of said safe deposit box No. 13726, the bank pass book of said savings Account No. 92674, later changed by said Central Bank to said Account No. 42950, and which said bank pass book showed the withdrawal therefrom by said Lulu H. Montgomery on May 27, 1929 of said sum of $17,714.94 and which said bank pass book was then and there, to-wit: on September 16, 1937, seen and could have been examined by said plaintiff in the presence of said Deputy Treasurer John R. Ober. ...” (Emphasis added.) The bill of exceptions then lists the various pass books material to this case as documents that were seen and could have been examined by appellant at that time.

Finally, the bill of exceptions sets forth: “That prior to March 13, 1940, other than his signing on June 27, 1927 of a joint tenancy card with said Lulu H. Brown as joint tenant in Account No. 42950, plaintiff did not assert any claim to any of said savings Accounts Nos. 92674, later changed to 42950, 31104, 78410, 58979, 38768, 3519 or 3520 or to any of the funds or moneys contained in said accounts or either of them.

“That at no time did said plaintiff deposit or contribute or withdraw any moneys to or from said Accounts Nos. 31104, 78410, 58979, 38768, 3519 or 3520 or any of them.

“That by the agreement and conduct of said plaintiff as such executor, said plaintiff as such executor treated and regarded said Accounts Nos. 78410, 58979, 38768, 3519 and 3520 and the moneys and funds therein contained as the property of said defendant and permitted said defendant upon his sanction, approval and direction as such executor, to withdraw, use and enjoy all moneys and funds from said Accounts Nos. 78410, 58979, 38768, 3519 and 3520, and said plaintiff as such executor made demand upon said defendant and in compliance with said demand said defendant did pay her share of State Inheritance Tax and Federal Estate Tax on the moneys contained in said savings Accounts Nos. 78410, 58979, 38768, 3519 and 3520. ’ ’ (Emphasis added.) It is true plaintiff testified that he made only a cursory examination of the savings account books at the time the safe deposit box was opened. Plaintiff testified that he observed on September 16; 1937, that the book showing Account No. 42950 indicated that all funds therein had been withdrawn on May 27, 1929.

On the basis of the foregoing facts with respect to plaintiff’s rights against the accounts in the names of decedent and defendant the court found, not that a confidential relationship existed between the parties but that during the period appellant acted as Mrs. Coffin’s attorney that “his relation with her was confidential.” The court also found “That on May 27,1929 said Lulu H. Montgomery, also known as L. H. Brown, without the knowledge or consent of plaintiff, withdrew from said savings account No. 42950 the sum of $17,714.94 and thereby closed said account No. 42950;

‘1 That at no time did said plaintiff deposit or contribute or withdraw any moneys to or from said account No. 92674 which was changed by said bank on July 17, 1926 to said account No. 42950 as aforesaid.” The findings then trace the funds removed in 1926 to other accounts existing at the time of Mrs. Coffin’s death in the names of defendant and decedent. Without repetition herein as to the particular accounts the court specifically designated the accounts by number, amount, date, etc., and found that in each instance the “pass book was then and there, to-wit: on September 16, 1937 seen and could have been examined by said plaintiff.” The findings then relate that as executor plaintiff delivered the respective bank books to the defendant and permitted defendant to withdraw the respective balances and close the accounts. The court also found that since June 27, 1927, “plaintiff did have the means of knowledge and notice” of the original account and of the condition of the deposits and withdrawals up to the date the account was closed, and that “on September 16, 1937 and at all times thereafter said plaintiff did have the means of knowledge and notice of said savings accounts ... [in the names of defendant and decedent] and of the condition of said accounts and each of them and of the moneys contained in said accounts and each of them.”

The court, as a conclusion of law, found that plaintiff was guilty of laches and that the action is barred by the provisions of subdivision 4 of section 338 of the Code of Civil Procedure, which was pleaded by defendant. If the provisions of subdivision 4 of section 338 may be invoked, the subject of laches need not be considered. The subdivision of the section provides that an action for relief on the ground of fraud or mistake must be commenced within three years, and further provides: 1 ‘ The cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party, of the facts constituting the fraud or mistake. ’ ’

Appellant has evolved a theory which, upon examination, appears to be quite involved. Briefly, it is that the statute of limitations could not commence to operate until appellant gained knowledge of facts from which he could trace the disposition of the funds to respondent. Appellant then sets the date of October 14, 1937, the date of his appointment as executor, as the date when he was able to trace the funds. It seems to be appellant’s theory that it was Ms appointment as executor that gave him the legal right to check decedent’s bank accounts. Defendant and decedent under fictitious names owned the right to a safety deposit box. All of the bank pass books on documentary form, giving a complete history of the various transactions, was available to appellant to examine when he opened that safe deposit box. Appellant did not deny on the witness stand that he could have thoroughly examined the accounts on September 16, 1937. His position is that his examination was cursory. There is a suggestion that appellant did not desire to take action against respondent while he acted as executor. It was stipulated as a fact in the bill of exceptions “that plaintiff was still acting as executor of the decedent’s estate, when this action was filed on October 11, 1940.”

Each side approached the appeal in statements to the effect that the problem to be decided is when did plaintiff discover the fact that the money, deposited in joint tenancy by Lulu H. Coffin under the names of L. H. Brown and Chas. A. Bliss, had been withdrawn by Mrs. Coffin and deposited in the various accounts here considered. Appellant asserts that this is the sole question to be decided, but that the date of discovery is October 14, 1937, the date upon which plaintiff was appointed the executor of Mrs. Coffin’s estate. Respondent accepts the challenge and proceeds to demonstrate that the finding that appellant saw and could have examined the various bank books is supported by the testimony of appellant that he actually examined the account numbered 42,950 and that such bank hook showed that “all funds therein had been withdrawn.”

“Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact.” (Civ. Code, §19.) The duty of “pleading and proving” that a fraud was not discovered until within three years prior to the filing of a complaint, and that he had “no actual or presumptive knowledge of facts sufficient to put him on inquiry” is on the plaintiff. (Hobart v. Hobart Estate Co., 26 Cal.2d 412, 437 [159 P.2d 958].) Whether a certain circumstance within the knowledge of an alleged defrauded party is sufficient to make it a duty of such person to investigate is a question of fact to be determined by the jury or the trial court. The court had the right to consider the fact that appellant as a lawyer was well aware of his legal rights under the statute of limitations (Hobart v. Hobart Estate Co., supra) and his duty to investigate. The trial court here had before it the testimony of appellant that the bank pass book was examined by appellant on September 16, 1937. The bank book, an exhibit in this case, shows eight entries, the last one of which was the withdrawal of the entire balance. No more convincing evidence could be presented than the documentary evidence that the money was gone “to arouse the suspicions of a reasonable person.” (Hobart v. Hobart Estate Co., supra, p. 442.) In appellant’s closing brief, the following statement is made: “He did look at the book covering account No. 42,950 and saw that all the funds had been withdrawn.” With equal ease he could have found that in account No. 31,104, in the name of Lulu H. Montgomery and her sister, there was deposited on the same date the identical amount withdrawn from account No. 42,950. Such evidence at least falls within the rule announced in the Hobart ease—that an inquiry must be made if the party alleged to be defrauded “is aware of facts which would make a reasonably prudent person suspicious.” (Hobart v. Hobart Estate Co., supra, p. 438; see, also, Scafidi v. Western Loan & Bldg. Co., 72 Cal.App.2d 550 [165 P.2d 260], petition for hearing in Supreme Court denied.) In the Hobart ease the fraud was not discovered at one time, nor could it have been discovered at one time. Hobart only learned of the fraud from time to time. Here the discovery that a fraud had been committed when Mrs. Coffin withdrew the money was made immediately when the safe deposit box was opened—the entire fraud was discovered just as soon as appellant found out the entire account had been withdrawn.

It has been suggested that a new cause of action arose with each successive transfer of money held originally in the joint tenancy account, and that such causes of action shall not be deemed to have accrued until the original joint tenant has means of knowledge relative to each successive transfer. Even assuming this theory is correct it is admitted that on September 16, 1937, the appellant here saw that his account had been closed and that there were innumerable other accounts in which the decedent had an interest prior to her death. It can not be said that the trial court was unjustified in concluding that appellant had “knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud [i.e., the transfer into the account with defendant].” (Hobart v. Hobart Estate Co., supra, p. 437.) It is true that here, although the means of discovery were available to plaintiff at an earlier date as found by the trial court, prior to his examination of the safe deposit box the circumstances were not such that appellant had a duty to inquire so that his failure so to do became a negligent omission during that time. However, it should not be said that the trial court’s determination putting him under a duty as of September 16, 1937, was erroneous as a matter of law, even under this theory, where it appears that plaintiff saw the other bank books. The determination that his duty to inquire started at that date is supported by the evidence that he knew of decedent’s proclivities for having accounts in fictitious names, her habit of having many accounts and that the money in the joint account in his name had been withdrawn. To give this theory of successive fraudulent acts any greater weight in determining the date this cause of action was discovered within section 338(4) would require that June, 1939—the date appellant selected as the date that he actually obtained knowledge that the funds had been transferred to respondent—be selected as the date from which the statute started to run. The admission of appellant that on October 14, 1937, the statute of limitations actually started to run would be worthless. The facts in this ease warrant the application of the recent rule that the statute commences to run only after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud. (Civ. Code, § 19; Hobart v. Hobart Estate Co., supra.) However, there is nothing in the Hobart case which compels this court to go contrary to the conclusions of the trial court with respect to means of knowledge and suspicious circumstances where the conclusion of the trial court is based on facts susceptible to conflicting inferences.

In view of all the circumstances supporting the finding of the court, it should not be said by an appellate court as a matter of law or as a matter of fact that the statute of limitations did not commence to run from September 16, 1937.

The judgment is affirmed.

Knight, J., concurred.