Skylawn v. Superior Court

Opinion

FEINBERG, J.

The petition in this matter seeks review of an order denying petitioners’ motions for summary judgment. We are asked to decide whether a third party contract is an offer to the creditor-beneficiary so that the beneficiary must accept the “offer” before a cause of action in his favor accrues. There is no dispute as to the relevant facts.

On October 21, 1966, Roy C. Alexander and Anna B. Alexander commenced two actions in the Superior Court of Solano County against Abbey of the Chimes, a California corporation (hereinafter Abbey).

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On August 1, 1968, Anna B. Alexander died and said actions were prosecuted in the name of Roy C. Alexander.

On January 10, 1969, Abbey and petitioners Skylawn, a California corporation, May L. McCormac (hereinafter McCormac) and Scott McCormac (since divorced), mutually executed an agreement in writing by virtue of which Abbey agreed to sell to petitioner Skylawn all of its property and assets. This agreement was consummated, in consideration of which Skylawn executed to McCormac two promissoiy notes. Both notes referred to the pending litigation between Roy C. Alexander and Abbey. The agreement of January 10, 1969, recites that in the event Roy C. Alexander secured judgment against Abbey, Skylawn agreed and assumed the liability to pay such judgment and any such amounts paid would reduce the face amount of the promissory note in the principal sum of $44,479.12.

On February 8, 1971, Roy C. Alexander recovered money judgments against Abbey in said two actions.

The obligation of petitioner Skylawn to pay the judgments pursuant to said agreement dated January 10, 1969, matured and accrued on February 8, 1971, when said judgments were rendered.

On April 20, 1971, Roy C. Alexander died. On June 1, 1971, Harold A. Alexander and Helen L. Lawrence, the real parties in interest, were appointed the executor and executrix of his estate.

On September 30, 1971, petitioner Skyview Memorial Lawn (Skyview), a California corporation, executed a written agreement with petitioner Skylawn, pursuant to which, on December 1, 1971, Skyview in writing agreed to assume and pay said promissory notes.