Walsh v. Jacobson

HAHN, J.,

pro

tem.

Plaintiff appeals from a judgment in favor of defendant in an action brought upon a written contract for the payment of $3,000. Appellant in her brief asserts that the only question involved in this appeal, is whether or not she had the right to offer evidence in rebuttal to controvert the effect of a written instrument bearing her signature which defendant set up in his answer as an affirmative defense to the action, and as to which receipt plaintiff did not file any affidavit denying its execution. As respondent has filed no brief, we shall consider alone the question as stated by appellant.

Plaintiff’s action is based upon an agreement dated June 18, 1929, wherein defendant agreed, in settlement of a lawsuit then pending between them, to pay plaintiff $3,000. The agreement further provided that defendant would convey to plaintiff, as security for the payment of said sum, lot 21 of the Glen Eyrie tract. The complaint admits the payment of $500 on account of said indebtedness and prays judgment for $2,500, the balance remaining unpaid. The answer of defendant in addition to certain denials, sets up as a separate affirmative defense, a satisfaction and discharge of all claims of the plaintiff against defendant arising out of said contract of June 18, 1929, by the defendant conveying to plaintiff on June 26, 1929, title to certain real property, which settlement was evidenced by a writing signed by plaintiff, which reads as follows:

“Received of O. E. Jacobson, a deed and Guarantee of title to Lot forty (40) tract No. 1083, as per m'ap recorded in booh 17, page 84 of maps, in the office of the County

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Recorder of Los Angeles Co., in full settlement of all claims against said C. E. Jacobson, arising out of the New Brunswick Apt. House deal, including that certain contract agreement dated June 18, 29, and calling for a ($3,000) payment. Daisy B. Walsh.”

No affidavit, as provided for in section 448 of the Code of Civil Procedure, denying the execution of said receipt was filed by plaintiff.

In- addition to other evidence supporting the allegations of her complaint, plaintiff testified that on or about September 17, 192'9, defendant requested of her that she reconvey to him lot 21 of the Glen Eyrie tract, which he had conveyed to her as security for the payment of the $3,000 he owed her, and stated that in place thereof he would convey to her a lot and house in Burbank, which was lot 40 of tract 1083 referred to in the receipt pleaded in defendant’s answer; that about June, 1930, almost a year after she received a deed to lot 40 of tract 1083, she found a buyer for the lot and asked defendant if it was all right to sell it and credit on his obligation to her the amount she received for the property. This she did, crediting the sum of $500, which she received for the lot, on the indebtedness owing her. With this evidence, plaintiff rested her case. Whereupon counsel for defendant made the following statement :'