Warren v. Nair

MOORE, P. J.

This appeal is from a judgment adverse to plaintiff declaring that defendant Hannah Nair is under no duty to construct a room, herein called the “penthouse,” on the roof of a certain property leased by defendant’s testator from appellant, or to complete the construction of an additional parking area at the rear of such property.

Under date of July 23, 1948, appellant and defendant’s husband, now deceased, executed a lease whereby decedent agreed as part of the consideration for the lease to make certain alterations designed to complete the conversion of the property into a business structure with a parking lot at the rear. Appellant was to furnish $8,000 for such renovation and the lessee was to repay this sum in monthly installments of $100 each. Lessee was also to pay the total rental for a 20-year term in monthly installments of $4.00 for the first 10 years and $450 for the second 10 years. Respondent executed a written guaranty as to the obligations assumed by the lessee. Prior to the execution of the agreement, plans for the alterations had been prepared and, although reference was made to them in the lease, they were not attached to or incorporated therein. Mr. Nair (lessee) commenced the contemplated alterations and same were in progress at the date

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of his death, October 18, 1948. Mrs. Nair, having thereafter qualified as his executrix, completed the construction with the exception of the matters in dispute herein.

Reversal of the judgment is demanded on two grounds: namely, (1) the court’s rejection of appellant’s offer to testify relative to certain matters; (2) the evidence does not support the findings.

It was not error to strike from the record the testimony of appellant concerning sketches of the proposed alterations or her testimony describing the penthouse and the condition of the parking area as they appeared at the time of the trial. Such sketches and the testimony of conversations with decedent were stricken pursuant to respondent’s objection that it was improper under the “dead man’s statute,” Code of Civil Procedure, section 1880.3, which provides that a party to a proceeding upon a claim against the estate of a deceased person is barred from testifying “as to any matter or fact occurring before the death of such deceased person.”