Unger v. Goldman

GOULD, J., pro tem.

Involved financial transactions between plaintiff and her husband, defendant Goldman and his affiliated finance corporations, and a construction company and its numerous creditors brought about a situation early in the year 1928 wherein the various parties named werej in litigation in two separate superior court suits. One of these was called for trial March 28, 1928. On that date, it was testified in the within ease in plaintiff’s behalf, defendant Goldman promised to give the Ungers his secured note for $10,000 in consideration of their dismissal of the pending action against him. The dismissal was signed and filed the same day. The note was not made out until June 14, 1928, and was delivered to the Ungers, so plaintiff testified, about one montiji later. Originally the note was secured by a mortgage, duly recorded July 5, 1928, but the Ungers on the very date the note and mortgage bear, June 14, 1928, had executed a releasej of the mortgage. This was done, plaintiff testified, without consideration and in the mistaken belief that she was signing a quitclaim deed to another piece of property, and tlje trial court herein made a finding to that effect. In any event, the security represented by the mortgage had vanished before the date of the trial of the within action, by reason of the foreclosure of a prior lien upon the mortgaged premises. Plaintiff’s husband had died prior to filing suit herein, she had succeeded to his interest in the $10,000 note and mortgage, and as the sole owner thereof sued defendant Goldman upon the instrument, joining the corporate defendant as thej owner of some interest in the mortgaged premises.

[131]

Upon trial findings were all in plaintiff’s favor, the court rendering a personal judgment against defendant Goldman for the unpaid principal balance of the note, interest and costs. Goldman as defendant and cross-complainant, together with cross-complainant Angel City Investment Company, appeals.

Appellant Goldman’s principal contention has to do with a letter dated September 10, 1928, signed by himself, addressed to the then attorney for the Ungers and bearing the signed acceptance of the Ungers. This letter purported to deliver to the latter’s attorney the $10,000 note herein involved, together with the mortgage securing the same and the mortgage release above referred to, and, after imposing certain other conditions, specifically provided that Goldman “does not acknowledge any indebtedness or obligation” to the Ungers, and that "in accepting this offer it is understood that [the Ungers] do not claim any obligation against the said . . . Goldman”. It is Goldman’s contention that the note and mortgage in question accompanied by the above letter were not delivered to the Ungers until after September 10, 1928, and that the acceptance of the same by the payees made the note subject to the terms mentioned in the letter; that the liability of the maker of the note was measured by the restrictions in the concomitant writing.