Conner v. Plank

CONREY, P. J.

Appeal from judgment in favor of plaintiff. The findings of fact in this ease state that on September 8, 1911, the plaintiff entered into an agreement with the defendant Mary D. Plank whereby the defendant agreed to pay to plaintiff one-half of certain moneys theretofore received by her from F. W. Partridge, and also to pay to plaintiff on the distribution of the estate of said Partridge deceased, one-half of the net value of said estate as the same should be distributed to her; that in consideration of said

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agreement on the part of defendant, the plaintiff agreed to obtain forthwith an assignment to him of all interest of his mother Mary Abigail Conner in the said estate, she being the sole heir at law of said Partridge, deceased, at the time of his death; and plaintiff further agreed not to institute any proceedings for the contest of the will of said deceased and to relinquish to defendant all claims of his said mother in and to the property of said Partridge, deceased, and of his said estate.

It is further found that the plaintiff performed all of the terms of the contract made by him, and that the defendant has neglected and refused to perform her part of said contract, although the entire estate was distributed to her and no contest of the will was made.

There is no dispute as to the correctness of the amount of the judgment, if plaintiff is entitled to recover anything. The only questions presented have reference to the sufficiency of the evidence to support the findings which were made in favor of plaintiff as to the making of the contract.

P. W. Partridge died in Los Angeles County, leaving an estate in that county, and there his alleged will was offered for probate. According to the terms of said will the entire estate was given to the defendant (who was not an heir at law of the decedent), except that the sum of ten dollars was bequeathed to the plaintiff. The plaintiff came to Los Angeles from an eastern state and on behalf of his mother was preparing to contest the alleged will. He engaged as his attorney Gurney E. Newlin, and the defendant was represented by Samuel M. Haskins, also an attorney at law. In the testimony of Mr. Newlin and Mr. Haskins there is ample evidence that the terms of the alleged agreement were fully understood between them; they are the terms which were offered by Mr. Newlin and accepted by Mr. Haskins. No question exists as to the authority of Mr. Newlin to represent the plaintiff. On the other hand, it appears that Mrs. Plank stated in the presence of Newlin that she would do anything that Mi*. Haskins advised her to and that any agreement that Mr. Haskins reached with Newlin was satisfactory to her. The testimony of Haskins shows that Mrs. Plank was fully informed about the terms of the agreement; that later in the day she expressly gave her sanction to the same in a telephone message to Haskins, and that Haskins thereupon informed