Locke v. Meline

8 Cal.App.2d 482 (1935) APPLEWITE S. LOCKE, as Administratrix, etc., Appellant,

v.

FRANK L. MELINE et al., Respondents.

Civ. No. 7966. California Court of Appeals. Second Appellate District, Division One.

July 23, 1935. Thomas H. Hearn for Appellant.

Walter H. Hewicker for Respondents.

Roth, J., pro tem.

This action was instituted by Benjamin F. Locke, now deceased. Appellant as administratrix of his estate has been substituted in his place. The complaint contained three causes of action, but was actually tried on the first, which was a cause of action based on a written contract made with Locke by defendants to pay him a sum [483] of money in return for certain services. The answer of defendants to the first cause of action denied all of its material allegations and set up separate defenses based upon the statute of limitations and the statute of frauds. The action was tried before a jury. It would serve no good purpose to recite in detail, or otherwise, the evidence submitted. It is sufficient to say that Locke submitted substantial evidence to support all of the material allegations of the first cause of action and that defendant placed every material allegation in issue and submitted substantial evidence in defense. [1] The defense of the statute of limitations and the statute of frauds pleaded did not apply since the contract alleged was proved to be in writing, and although evidence was submitted upon the subject of accord and satisfaction, this defense was not specially pleaded and, under the law, it must be. (Hanson v. Fresno Jersey Farm Dairy Co., 220 Cal. 402, 409 [31 PaCal.2d 359].) Further, it is apparent that the jury did not believe it to have been proved. [2] It is clear, therefore, that there was a sharp conflict with probative evidence on each side, in which every feature of the cause of action was put in issue, and on such a situation it is unnecessary to cite authorities to say that a verdict of a jury on a question of fact will not be disturbed. Prior to submission of the cause, a motion was made by defendants, respondents herein, for a directed verdict. The motion was denied. The jury brought in a verdict for the deceased in the sum of $15,000. Judgment was entered thereon, and thereafter respondents moved for a new trial on all statutory grounds. In ruling upon said motion, the court made the following order: "Defendant's motion for a new trial, heretofore submitted, is now by the Court granted, and under Section 629 C. C. P. Judgment ordered for defendants with their costs. ..."