Pete v. Henderson

WOOD (Fred B.), J.

Upon the first appeal herein the judgment was reversed with directions that plaintiff “be given the opportunity to amend his complaint, and to prove, if he can, that, had the judgment in the first action properly been appealed, it would have been reversed.”

(Pete

v.

Henderson,

124 Cal.App.2d 487, 492 [269 P.2d 78], to which we refer for the antecedent history of this case.)

Plaintiff did so amend and the cause was retried, resulting in a judgment of $150 for attorney fees which plaintiff had advanced to defendant’s predecessor to take an appeal in a former action

(Alderson

v.

Pete, Superior Court, Alameda County, Civ. No. 213874)

but no reimbursement for moneys which had been paid by plaintiff in satisfaction of the judgment ($1,660) rendered in the former action. The denial of any such reimbursement was predicated upon findings that although the attorney-defendant was negligent (the notice of appeal was filed too late) the judgment would not have been reversed even if the appeal had been perfected in time and thereafter prosecuted with care and caution.

[774]

In support of his appeal herein

*

plaintiff urges (1) insufficiency of the evidence to support the findings in the Alderson suit, (2) error in excluding evidence of rescission of the PeteAlderson contract, and (3) error in disregarding plaintiff’s claim that plaintiff could have settled the Alderson $1,660 judgment for $705 but for his attorney’s assurance that it would be reversed upon appeal.

The judgment in the Alderson case awarded damages in favor of Minnie Alderson against Louis Pete, Jr., as administrator of the estate of Louis Pete, Sr., for breach of a contract between Alderson and Louis Pete, Sr.

The contract, as found by the trial court in that ease was as follows: Alderson promised to erect and pay for an additional room at the rear of a house belonging to Louis Pete, Sr., at a cost of not less than $900; Pete agreed to let Alderson occupy the room for the rest of her life at a monthly rental of $24, the rental to be charged first against the actual cost of constructing the room, and thereafter to be paid monthly in cash; Alderson constructed the room at a cost of $945.69 and commenced to occupy it about May 11, 1947; about March 7, 1948, Pete wrongfully evicted Alderson from the room; the reasonable rental value of the room is $30 per month; Aider-son at the time of eviction was 49 years old and had a life expectancy of 22 years; and Alderson was damaged in the sum of $1,660.87, plus $19.95, the value of a rug of Alderson’s which Pete retained in his possession.