Price v. Price

WOOD, J.

In this litigation a cross-complaint was filed and both parties have appealed. For clarity the parties will be referred to herein as plaintiff and defendant.

A property settlement agreement was made by plaintiff and defendant on September 23, 1925, in the city of New York while they were husband and wife but living separate and apart. In the agreement it was provided that defendant should pay to plaintiff the sum of $75 per week and it was further provided that, “in the event of a divorce between the parties, and the remarriage of the wife, all obligations of the husband for her maintenance and support shall cease and determine”. After the execution of the agreement plaintiff and defendant were divorced and plaintiff became a resident of the city of Los Angeles. In the year 1934 defendant was in arrears in his payments and plaintiff went to New York, where she met defendant and a new agreement was made on July 12, 1934, whereby the amount of the payments to be made were reduced. On March 14, 1936, plaintiff was married to one Bert Bergstedt at Ensenada, Mexico. A decree annulling this marriage was obtained in Los Angeles County on November 16, 1936. By her complaint plaintiff seeks judgment for the payments due her in accordance with the

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original agreement and defendant by his cross-complaint seeks judgment against plaintiff for the sum of $650, which was paid to plaintiff before defendant was informed of her remarriage. The trial court rendered judgment in plaintiff’s favor for the sum due under the original agreement up to the date of the remarriage of plaintiff. The Court also rendered judgment in favor of defendant for the sum paid by him after the remarriage of the plaintiff and before defendant was aware of it.

Defendant paid all the sums due in accordance with the original agreement up to July 12, 1934. On that date plaintiff signed and delivered to defendant a written statement as follows: “Thank you very much for the cheque for '$1,625 —and also the cash for $225.00j this clears us up to August 12. Commencing the week of Aug. 13 you are to send me $50.00 a week until Nov. 1. After that time you are to send me $150.00 per month as full payment due me. ’ ’ Thereafter all payments were made by defendant and accepted by plaintiff in accordance with the modified agreement and in full satisfaction of the obligations of defendant. The agreement of July 12, 1934, modifying the original agreement has been fully executed. The trial court, on sufficient evidence, found that the original agreement had been modified, but erroneously held that the agreement was not effective for want of a consideration. No consideration was necessary. The rule is that “an executed oral agreement will serve as a modification or release of a written agreement and this too without regard to the presence or absence of a consideration”.