Kittel v. Currier

SALSMAN, J.

Plaintiff sued for money due under an oral agreement of which she was the third-party beneficiary. Judgment was entered for defendant and plaintiff appeals.

Plaintiff alleged in her complaint that on January 1, 1952, Raymond N. Nielsen entered into an oral agreement with J. J. Kittel, plaintiff’s husband, whereby Kittel sold and Nielsen purchased the two-thirds interest of Kittel in an insurance brokerage business; that Nielsen agreed to pay to plaintiff for the two-thirds interest in the insurance business the sum of $250 per month as long as plaintiff lived. Plaintiff further alleged the death of Nielsen on May 7,

1959;

that a claim was presented by plaintiff to the defendant Earle W. Currier, executor of the estate of Nielsen, and that this claim was rejected.

The defendant answered plaintiff’s complaint by a general denial, except that defendant admitted the presentation of a-claim by plaintiff, and its rejection. As a separate defense defendant alleged, on information and belief, that Kittel and Nielsen entered into a written contract for the sale of Kittel’s two-thirds interest in the insurance brokerage business, and that the total price for the two-thirds interest in the business was $6,000, to be paid by Nielsen to the plaintiff at the rate of $250 per month, commencing January 1, 1952. The written contract was set out in full in the answer, and defendant alleged it had been fully performed by Nielsen. Defendant further alleged that in January 1954 Nielsen and Kittel orally' agreed to a modification of the written contract whereby Nielsen, for a separate consideration to be received from Kittel, agreed to pay $250 per month to plaintiff as long as Nielsen lived.

The plaintiff did not file any affidavit denying the genuineness and due execution of the written agreement pleaded in the answer. A pretrial conference was held some ten months after the filing of defendant’s answer and an order was issued which listed as an issue in the ease: “ (4) Whether J. J. Kittel and Raymond N. Nielsen entered into the written agreement

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alleged in the answer.” On motion of the defendant this issue was stricken on the ground that plaintiff’s failure to file the affidavit referred to in Code of Civil Procedure section 448 had the effect of admitting the genuineness and due execution of the agreement set forth in the answer. Thereafter plaintiff applied to the court for relief under Code of Civil Procedure section 473, but relief was denied because more than six months had elapsed since the answer had been filed. Plaintiff also demanded inspection of the original agreement set out in defendant's answer. The defendant did not comply with this demand because he did not have in his possession or control, nor was he able to produce for inspection, the original written agreement.