Schalow v. Schalow

WARNE, J. pro tem.

*

Stating the evidence most favorable to the respondent, in March of 1950 the parties to this action entered into an oral agreement whereby respondent agreed to sell and appellants agreed to buy certain improved farm property in Merced County. The agreed price of the property was $24,000. In order that the appellants might obtain a loan to carry out the deal respondent then sold and conveyed to the Department of Veterans Affairs who, concurrently with said transfer, advanced the sum of $13,000 to the respondent and then entered into an agreement for the sale of the property to the appellants on long term installment payments. In addition to the $13,000 advanced by the department appellants transferred a $1,500 equity in other real property to respondent.

In April of 1956 respondent brought this suit against her son and his wife to collect the balance due her for the property, i.e., $9,480, which she alleged the appellants promised to pay her in $1,000 yearly installments commencing March, 1952.

In addition to the causes of action to recover on the real property contract the complaint contained a cause of action to recover rentals which Frank C. Schalow, as respondent’s agent, had collected and failed to turn over to respondent, and a further cause of action to recover the sum of $505, the agreed selling price of an Allis Chalmers farm tractor and ditcher and jumper attachment for same, which respondent sold to appellants. The trial court found that there was owing and due to respondent the sum of $1,358 for rent collected, and that there was owing and due the sum of $505 for the

[450]

tractor and equipment. These items were included in the lump sum judgment rendered against the appellants. Appellants have not attacked the judgment insofar as it is based upon the last two items.

By their answer to the complaint respecting the real property transaction appellants denied that they were indebted to the respondent on account of the sale and conveyance of the real property in the sum of $9,500 or in any sum at all; denied that they agreed to pay the sum of $24,000 for the property, or any other sum in excess of the $14,500 which respondent received. As separate and special defenses they alleged that the purported agreement was not in writing and therefore barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure, and insofar as fraud was concerned it was barred by the provisions of subdivision 4 of section 338 of the Code of Civil Procedure. They also by way of special defense alleged that the agreement to pay $24,000 for the real property and improvements was at the time illegal, void and unenforceable under the provisions of section 986.5 of the Military and Veterans Code of California; and lastly they pleaded and alleged that the agreement was invalid under the statute of frauds since it was not in writing subscribed by the appellants.