California Bank v. Kenoyer

SHINN, J.,

pro tem.

Plaintiff California Bank recovered judgment against defendant and appellant upon the following agreement: “Los Angeles, California, February 7th, 1931. CALIFORNIA BANK: IN CONSIDERATION of your forbearing to take any further action until February 25th, 1931 to realize upon the judgment heretofore entered in the case of California Bank vs. S. A. Kenoyer, which was entered on January 10th, 1931 in Judgment Book 657, Page 137 in the office of the County Clerk of Los Angeles County, California, the undersigned hereby guarantees payment to you on said February 25th, 1931 of the full amount unpaid on said judgment, the amount of said judgment as originally entered being NINE THOUSAND TWO HUNDRED THIRTY ONE and 86/100 DOLLARS ($9231.86), and the unpaid amount thereon as of this date being THREE THOUSAND THIRTY FIVE and 21/100 DOLLARS ($3035.21). Winnie V. Kenoyer. ’ ’

The issues raised by defendant’s answer, upon which trial was had and findings made adverse to the claims of defendant, were the following: that the agreement was an offer by defendant not accepted by plaintiff; that the agreement was without consideration and, that its execution by defendant was procured by threats of plaintiff to levy execution against defendant’s separate property upon the judgment plaintiff held against defendant’s husband. The same points are urged for reversal of the judgment.

The writing is a definite offer to pay the balance of the judgment upon condition that the judgment creditor forbear action for a specified period to enforce collection of the judgment. This offer was not revoked by defendant and it, therefore stood as a continuing offer between February 7 and February 26, 1931. It was not necessary that the offer be accepted in writing. The offer to pay was not conditional upon a promise to forbear, but upon actual forbearance for a stipulated time. The finding of the trial

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court was that plaintiff took no action for the collection of the judgment between the seventh and twenty-sixth days of February, 1931, and duly performed all the conditions of said guaranty agreement on its part. The sufficiency of the evidence to support this finding is not questioned. The creditor suffered the detriment of delaying proceedings for the enforcement of the judgment, which alone constituted a consideration for the promise. (Sec. 1605, Civ. Code.)