Scott v. Symons

18 Citing cases

  1. Lantz v. Stribling

    130 Cal.App.2d 476 (Cal. Ct. App. 1955)   Cited 8 times

    [3] One who takes property from a trustee in violation of the trust with knowledge of the trust holds the property subject to the trust as a constructive trustee. (Civ. Code, ยง 2243; Scott v. Symons, 191 Cal. 441, 453-454 [ 216 P. 604]; Lucas v. Associacao Protectora etc. Da Calif., 61 Cal.App.2d 344, 351-352 [ 143 P.2d 53]; 2 Scott on Trusts, ยง 291, p. 1605; Rest., Restitution, ยง 168; Id., Trusts, ยงยง 288-291.) [4] Since appellant testified that he had seen the joint venture agreement before he purchased the property the above stated rule is applicable to this transaction.

  2. Moss v. Moss

    20 Cal.2d 640 (Cal. 1942)   Cited 86 times
    Holding that cause of action for cancellation of an agreement is governed by section 343, in part because there is "no section of the code that expressly limits the time within which an action must be brought for cancellation of an instrument because of its illegality"

    (See, also, Sherman v. S.K.D. Oil Co., 185 Cal. 534, 545 [ 197 P. 799].) This section has been considered applicable, for example, to actions based upon express and constructive trusts ( Scott v. Symons, 191 Cal. 441, 456 [ 216 P. 604]; Wrightson v. Dougherty, 5 Cal.2d 257, 264 [ 54 P.2d 13]), to actions for an accounting ( McArthur v. Blaisdell, 159 Cal. 604 [ 115 P. 52]; West v. Russell, 74 Cal. 544 [16 P. 392]), to an action in the nature of a creditor's bill against holders of watered stock ( Sherman v. S.K.D. Oil Co., supra), to an action to set aside deeds made under undue influence ( Trubody v. Trubody, 137 Cal. 172, 174 [ 69 P. 968]), and to a proceeding under section 708 of the Code of Civil Procedure to set aside a satisfaction and revive a judgment after an execution and sale made thereunder had been found void. ( Merguire v. O'Donnell, 139 Cal. 6, 9 [ 72 P. 337, 96 Am. St. Rep. 91].)

  3. Moss v. Underwriters' Report, Inc.

    12 Cal.2d 266 (Cal. 1938)   Cited 49 times
    In Moss v. Underwriters' Report, Inc. (1938), 12 Cal.2d 266, 274-275 [9-12] [ 83 P.2d 503], it was pointed out that the statute (Code Civ. Proc., ยง 1033) which provides that a successful litigant furnish a memorandum of his costs and "necessary disbursements" in the action "does not contemplate that a defendant must pay all of the successful plaintiff's expenses in connection with the litigation," and that "the right to reimbursement for expenses depends upon the statutory provisions concerning costs and not upon the necessity, in the mind of the litigant, or his counsel, for the outlay."

    When it thus appears from the facts found that the statute has not run, there is no prejudicial error in a failure to find separately on the alleged bar of the statute. ( Woodham v. Cline, 130 Cal. 497, 498 [ 62 P. 822]; Scott v. Symons, 191 Cal. 441, 456 [ 216 P. 604]; Webster v. Mountain Monarch G.M. Co., 6 Cal.App.2d 450, 454 [ 44 P.2d 646]; 24 Cal. Jur., p. 944.) [4] "It is urged that the original contract was abrogated, or so materially modified, as to defeat all rights of respondent founded upon it.

  4. Reiniger v. Hassell

    216 Cal. 209 (Cal. 1932)   Cited 23 times

    A finding that plaintiff rescinded promptly upon becoming aware of defendant's fraud is necessarily implied from the findings and decision of the lower court. Where a finding omitted must be inferred from a consideration of the findings actually made, the appellate court will recognize the necessary inference and consider the finding in question as having in effect been made, and this is so with respect to laches. ( Scott v. Symons, 191 Cal. 441 [ 216 P. 604]; Stevinson v. San Joaquin etc. Co., 162 Cal. 141 [ 121 P. 398]; Suhr v. Lauterbach, supra.) In the Symons case, it is held that the trial court, having given judgment in favor of plaintiff, in effect found against unnecessary delays in instituting the action.

  5. Collier v. Merced Irr. Dist

    213 Cal. 554 (Cal. 1931)   Cited 49 times
    In Collier v. Merced Irr.Dist., supra, 213 Cal. 554, 572, this court awarded the owner trial and appeal costs under the constitutional provision even though it was held that benefits to his land flowing from the public project barred him from recovering any monetary damages for the taking.

    And laches abundantly appears from the evidence and facts found by the court. Inasmuch as appellant was put on notice of all the essential features of such a plea by the allegations of the intervention of a public use and the statute of limitations, it does not seem to be a harsh act to invoke the doctrine here for the first time to sustain the action of the court below. ( Garrity v. Miller, 204 Cal. 454 [ 268 P. 622]; Stevinson v. San Joaquin etc. Co., 162 Cal. 141 [ 121 P. 398]; Akley v. Bassett, 189 Cal. 625, 648 [ 209 P. 576]; Scott v. Symons, 191 Cal. 441, 457 [ 216 P. 604].) We therefore fully approve of the ruling of the court in this respect.

  6. Allison v. HCP, Inc.

    H036410 (Cal. Ct. App. Jan. 15, 2013)   Cited 1 times

    Instead, appellants maintain that this cause of action was properly based on a theory of liability that they describe as follows: "When a third party participates in a fiduciary's breach of trust, that third party is liable to the cestuis. Restatement of Trusts 201; Scott v. Symons (1923) 191 Cal.441; Lantz v. Stribling (1955) 130 C.A.2d 476; Probate Code 15003. Participation requires knowledge of the breach and receipt of trust property." They do not discuss the authorities they cite at all or provide any further legal argument, but merely argue that their allegations established that NMV had a fiduciary duty to them.

  7. Calzada v. Sinclair

    6 Cal.App.3d 903 (Cal. Ct. App. 1970)   Cited 2 times

    In the state of the record here, the judgment of the court in favor of plaintiffs, in effect, found against defendants on the defense of laches, and it was not necessary for the court to make a specific finding thereon. ( Kaye v. Jacobs, 122 Cal.App. 421, 430-431 [ 10 P.2d 186]; overruled on other grounds in Bumb v. Bennett, 51 Cal.2d 294, 300 [ 333 P.2d 23]; Scott v. Symons, 191 Cal. 441, 457 [ 216 P. 604]; Remiger v. Hassell, 216 Cal. 209, 211 [ 13 P.2d 737].) (5) Without any reference to the record, defendants urge that the court made no finding as to what plaintiffs received of value from defendants.

  8. Burt v. Irvine Co.

    237 Cal.App.2d 828 (Cal. Ct. App. 1965)   Cited 43 times
    Holding that negligence action against directors of company covered by ยง 339

    Code of Civil Procedure section 359 provides: "This title does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created." [24] Although the four-year period of section 343 of the Code of Civil Procedure has been applied to the breach of the written provisions of an express trust (see Scott v. Symons (1923) 191 Cal. 441, 456 [ 216 P. 604]; Marston v. Kuhland (1907) 151 Cal. 102, 104 [ 90 P. 188]) and to an action to recover the assets of a corporation which have been illegally transferred (see Stewart v. Indian Creek Lumber Co. (1961) 192 Cal.App.2d 93, 97 [ 13 Cal.Rptr. 397]), there is no warrant for extending to four years the time within which to commence an action for damages for negligence or for fraud. Code of Civil Procedure section 343 provides: "An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued."

  9. Hoxsie v. Clark

    234 Cal.App.2d 370 (Cal. Ct. App. 1965)   Cited 3 times
    In Hoxsie v. Clark, 234 Cal.App.2d 370, 374-375 [ 44 Cal.Rptr. 399], and Beach v. Arblaster, 194 Cal.App.2d 145, 162-163 [ 14 Cal.Rptr. 854], the decedent's promises to "take care of" or "to provide well" for the plaintiff by will were so obviously vague as to be totally incapable of enforcement.

    An action upon an express or resulting trust must be brought within the period of the statute of limitations. (See Laing v. Laubach, 233 Cal.App.2d 511, 518 [ 43 Cal.Rptr. 537]; Scott v. Symons, 191 Cal. 441 [ 216 P. 604]; Broder v. Conklin, 77 Cal. 330 [19 P. 513].) [5] A definite and certain promise is a strict requirement in an action in equity to enforce an oral agreement to make a will.

  10. Laing v. Laubach

    233 Cal.App.2d 511 (Cal. Ct. App. 1965)   Cited 17 times

    [16a] Plaintiff sets out the rule that an action upon an express or resulting trust must be brought within four years from the time the beneficiary has knowledge or notice of the repudiation of the trust. ( Scott v. Symons, 191 Cal. 441 [ 216 P. 604]; Broder v. Conklin, 77 Cal. 330, 339 [19 P. 513].) The complaint alleges that the defendant did not claim the property as his own until January 12, 1959, at which time he demanded that plaintiff vacate the property.