Mashbir v. Mashbir

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover a sum of money allegedly due under a separation agreement defendant appeals.

The material facts are:

Plaintiff’s complaint alleged in substance that defendant owed her as arrearage under a separation agreement dated October 3, 1926, $10,466. Defendant by his answer denied generally the alleged indebtedness and as an affirmative defense asserted :

“. . . that the agreement referred to in plaintiff’s complaint, to-wit, the agreement of October 3, 1926, is no longer in force and effect, that on or about March 16, 1937, plaintiff and defendant made and entered into an agreement replacing said agreement of October 3, 1926, by said agreement of March, 1937, that under said agreement of March, 1937, said plaintiff, . . . waived and relinquished any and all rights accrued or accruing to her, the said plaintiff, with respect to any and all sums of money to which she was or thereafter would be entitled under said agreement of October, 1926, and fully released defendant of and from any and all obligations under said agreement of October, 1926.”

At the trial defendant offered evidence in support of his affirmative defense as pleaded above. All of the evidence thus offered by defendant was upon motion of plaintiff stricken from the record when defendant had rested his case.

Defendant relies for reversal of the judgment on this proposition:

It was prejudicially erroneous for the trial court to strike from the evidence all of the testimony and exhibits which defendant had offered in support of his affirmative defense that the parties by an agreement of March 16, 1937, had re

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leased defendant from any obligation or obligations created by their agreement of October 3, 1926.

This proposition is tenable. The law is established that a party is entitled to have received in evidence and considered by the court, before findings of fact are made, all competent, material, and relevant evidence which tends to prove or disprove any material issue raised by the pleadings. In the instant case together with other testimony stricken by the court defendant offered the following evidence.