Opinion
Appeal from a judgment of the Superior Court of Butte County, and from an order denying a new trial.
COUNSEL:
C. R. Bonestell, for Appellant.
Hundley & Gale, for Respondent.
JUDGES: In Bank. Belcher, C. C. Foote, C., and Hayne, C., concurred.
OPINION
BELCHER, Judge
This action was brought to establish a resulting trust. The property in controversy is a quarter-interest in a mining claim situate in Butte County. The complaint alleges that defendant purchased the interest for the sum of five hundred dollars, and took a deed therefor in his own name, but that in doing so he acted for and as the agent of plaintiff, and that plaintiff paid the purchase-money. The court found all the facts to be as alleged in the complaint, and rendered judgment accordingly. The defendant moved for a new trial, and has appealed from the judgment and order denying his motion.
The principal question presented for decision by appellant relates to the finding as to the amount and payment of the purchase-money. The contention is, that appellant paid for the property fifteen hundred dollars, and not five hundred dollars, as found by the court, and had therefore a right to retain the title until he received from plaintiff the balance of the purchase price.
But no such defense was set up, or even hinted at, in the answer. It cannot, therefore, be raised here for the first time. The case was properly tried upon the issues presented by the pleadings, and upon all of those issues there was ample evidence to justify the findings.
It is further contended that the finding that defendant, shortly before the commencement of this suit, repudiated the understanding between the plaintiff and himself, and denied plaintiff's ownership of the one-fourth interest purchased by him for plaintiff, and refused to give plaintiff a deed thereof, was not justified by the evidence. It is said that "the most rigorous examination of the evidence discloses nothing tending to support this finding." The answer to this position is, that the facts found were distinctly and clearly averred in the complaint, and were not denied by defendant in his answer. [21 P. 752] They were, therefore, admitted, and no evidence in support of them was necessary.
No other points are made, and it follows that the judgment and order appealed from should be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.