Coffer v. Lightford

WARNE, J. pro tem.

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This is an appeal from a money judgment rendered against appellant as Administrator of the Estate of Roy Coffer, deceased, in an action brought by respondent upon an account stated between her husband and his father, the deceased, Roy Coffer, and which was awarded to her by the provisions of an interlocutory decree of divorce.

The action was brought against Roy Coffer who died during the pendency of the action. Pursuant to application of the plaintiff, and order of the trial court thereon, the action was revived and continued against the defendant and appellant, as administrator with the will annexed of the estate of said deceased. It appears from the evidence that the deceased and his son, Clyde, during the year 1948 became partners in the operation of a sawmill, and that respondent and her husband, Clyde, loaned something in excess of $3,000 to the partnership. The enterprise was unsuccessful, and the partnership was dissolved. o In settlement of the partnership affairs the deceased, Roy Coffer, on July 12, 1949, entered into an agreement in writing whereby Roy Coffer, the deceased, agreed to pay to Clyde Coffer “Four dollars ($4.00) per thousand feet on all lumber sold until the sum of Four Thousand ($4,000.00) dollars has been received by the second party [i.e., Clyde].”

The agreement was to take effect after the first 100,000 feet of lumber had been cut. There is nothing in the record to show this agreement was ever carried out. While it is doubtful if the agreement can be classified as an account stated, the parties to the action construed it as such throughout the entire proceedings.

[193]

Respondent filed an action for divorce against her husband, Clyde, in the Superior Court of Nevada County, and on March 3, 1950, was granted an interlocutory decree of divorce which awarded her the community property “immediately,” a portion of which was described as follows: “An agreement for the payment of the sum of $4,000.00 to the defendant, dated July 12, between Roy Coffer and the defendant herein, from the proceeds of the sawmill belonging to said Roy Coffer. ’ ’ There is no evidence as to whether or not an appeal was taken from the" interlocutory decree or if relief therefrom was sought under the provisions of section 473 of the Code of Civil Procedure within the time provided by law. Respondent testified that this decree became final; however, after she so testified an objection was made to her answer, and the court sustained said objection upon the ground that it called for her conclusion; however, no motion was made to strike the answer, and it is therefore a part of the record. (53 Am.Jur., Trial, p. 118; 3 Jones on Evidence, 1668-1669, § 895.)