Home/California Court of Appeal/Vigli v. Davis

Vigli v. Davis

179 P.2d 586, 79 Cal. App. 2d 237, 1947 Cal. App. LEXIS 817
CourtCalifornia Court of Appeal
DecidedApril 21, 1947
DocketCiv. 13277
StatusPublished
Cited by5 cases

This text of 179 P.2d 586 (Vigli v. Davis) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vigli v. Davis, 179 P.2d 586, 79 Cal. App. 2d 237, 1947 Cal. App. LEXIS 817 (Cal. Ct. App. 1947).

Opinion

BRAY, J.

Appeal by all defendants from an order granting plaintiffs’ motion for a new trial, after a jury verdict in favor of defendants, in an action to recover an alleged secret profit while serving in the alleged capacity of real estate agents for plaintiffs.

The complaint alleged that William J. Davis, doing business as the Davis Realty Company, through his own employee, defendant Jay Brandell, acted as plaintiffs’ agent in the sale *239 of their property to one Galant; that they were induced to sell their property at a lower price than that which Davis could have obtained; that Davis, without their knowledge, purchased the property from their grantees, resold it to the ultimate purchaser for a much larger price than they had obtained, thereby realizing a secret profit, for which profit the plaintiffs asked judgment.

Defendants’ answer denied that any of the defendants other than defendant Brandell was the agent of plaintiffs in the sale transaction, and that any of the other defendants were employees of Davis, but alleged that these other defendants were independent real estate brokers; alleged that Brandell was plaintiffs’ sole agent in the transaction, and that the property was sold in the ordinary course of business to Galant as a bona fide purchaser for value; and denied that any defendant was guilty of fraud or concealment. The jury found in favor of all defendants. The court granted plaintiffs’ motion for a new trial, upon the ground of the insufficiency of the evidence to sustain the verdict.

Defendants’ primary contention on appeal is that as matter of law there was insufficient evidence to justify a verdict in favor of plaintiffs had one been returned by the jury, for the reason that the evidence shows without contradiction that Brandell alone, and not Davis, was the agent of plaintiffs, and therefore the granting of a new trial constituted a clear abuse of discretion. Secondly, they contend that the sale by plaintiffs to Galant effected an equitable conversion of title to plaintiffs’ property, and that by reason of such conversion, plaintiffs can legally have no interest in its subsequent disposition. Finally, they contend that plaintiffs had constructive knowledge of the subsequent transactions.

The test to be applied to the evidence on this appeal is as set forth in Williams v. Field Transportation Co., 28 Cal.2d 696 [171 P.2d 722], “An order granting a new trial upon the ground of the insufficiency of the evidence to sustain the judgment will not be disturbed upon appeal, unless there be a clear showing of abuse of discretion. ‘All presumptions are in favor of the order and it will be affirmed if it is sustainable on any ground. (Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 169 [153 P.2d 338], and cases cited.) The trial court in considering a motion for new trial is not bound by a conflict in the evidence, and has not abused its discretion when there is any evidence which would support a judgment in *240 favor of the moving party. ’ (Ballard v. Pacific Greyhound Lines, 28 Cal.2d [357] [170 P.2d 465].) Even if the evidence is uncontradicted, the trial judge may draw inferences from it contrary to those made by the jury, and it is his duty to resolve such conflicts in determining whether the issues should be retried. Only when, as a matter of law, there is no substantial evidence to support a contrary judgment, may an appellate court reverse an order granting a new trial. (Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305 [163 P.2d 689]; Mazzotta v. Los Angeles Ry. Corp., supra.)” (See, also, Estate of Sexton, 199 Cal. 759 [251 P. 778].)

Defendants admit that the foregoing is the rule, but contend that the evidence here is uncontradicted, basing this contention primarily on certain exhibits admitted in evidence. Unless we give to these exhibits the construction contended for by defendants, there was a decided conflict in the evidence. Disregarding, for the moment, defendant^ contention as to these documents, and all conflicts in the evidence, and giving to plaintiffs’ evidence the weight to which it is entitled in an appellate court, the evidence shows: Plaintiffs were the owners of an apartment house in San Francisco. About a year prior to the transactions here, defendant Bran-dell visited them and inquired if they were interested in selling their property. He told them that he was from the Davis Realty Company and presented them a card. (Plaintiffs’ Exhibit 10.) (Inasmuch as both sides place emphasis upon this card, and it is very difficult to describe realistically its appearance, a photostat of it' is attached to this opinion [see p. 244].) The plaintiffs informed Brandell that they did not wish to sell. In September, 1944, plaintiffs decided to sell. Plaintiff Joseph Vigli phoned the Davis Realty Company and told the girl who answered that plaintiffs wanted to list their property with the company to sell it for them, and that they had already talked to Mr. Brandell and would like Brandell to come out and talk it over. The following Sunday Brandell came out and gave them another card (a duplicate of plaintiffs’ Exhibit 10). Brandell told plaintiffs that the .Davis Company had quite a staff, all of whom would work on the matter of selling the property. Brandell suggested that the building was depreciated and that $50,000 would be the best price obtainable. Plaintiffs would not agree to that sum. The next night, Brandell returned, and plaintiffs signed the listing agreement headed “Agreement to Sell” with a sale price *241 of $55,000. (Again, because of its importance and the difficulty of properly describing its appearance, it is reproduced and attached to this opinion,and will be referred to as the “listing agreement.” [See p. 244.]) Neither plaintiff noticed the words which were stamped at the head of the agreement “Where Davis Realty Co. appears herein change to Jay Bran-dell, ’ ’ nor the blacking out at the end of the agreement of the words “Davis Realty Co.” Plaintiffs at all times believed that they were doing business with Davis Company and that Bran-dell was an agent or employee of Davis Company.

The Sunday following the execution of the listing agreement, plaintiffs saw an ad in the San Francisco Chronicle advertising the property for sale for $58,500. The ad ended “Jay Brandell D-A-V-I-S Realty 500 Geary (at 14th) BA 9700.” Immediately plaintiffs contacted Brandell asking why the sale price was advertised as $58,500 when Brandell had theretofore told them that $50,000 was all could be obtained and they had signed up to sell at $55,000. Brandell’s answer was that they could advertise it at any price they wanted and would try to get the best price possible. Brandell brought plaintiffs an offer of $50,000 which they refused, telling him that if anything were to be cut it would have to be the commission. Brandell then told them that the commission had to he split three ways, one-third to Davis, one-third to defendant Abrams, and one-third to Brandell.

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Bluebook (online)
179 P.2d 586, 79 Cal. App. 2d 237, 1947 Cal. App. LEXIS 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vigli-v-davis-calctapp-1947.