Wallenback v. Arnold

LANGDON, P. J.

This is an appeal by the plaintiff from a judgment in favor of the defendant in an action brought against her as executrix of the last will and testament of James Beechler, deceased, to recover twenty-five thousand dollars damages for the breach of an alleged contract between plaintiff and defendant’s testator.

James Beechler, during his lifetime, was a physician engaged in operating a sanitarium at Soquel, Santa Cruz County, California. The contract alleged in the complaint was one by which plaintiff and his wife agreed to take care of Dr. Beechler and his wife during their lives, and to take full charge of the sanitarium operated by the doctor, and to care for the doctor and his wife in sickness and in death,

[572]

and in consideration of these services the doctor and his wife agreed to give and convey to plaintiff and his wife all the property then owned or thereafter to be acquired by them.

The trial court found, upon sharply conflicting evidence, that the alleged contract was never signed by either Dr. Beeehler or his wife, and that their names were not signed thereto with their knowledge, consent, or authority, and that the alleged contract set out in the complaint was not written, dictated, or executed by or with the knowledge or consent or authority of the said James Beeehler and/or Jennie Beeehler, but as to them, and each of them, the same was and is a fictitious, forged, and counterfeit writing and agreement, and that the said names, James Beeehler and Jennie Beeehler, were signed thereto and thereon by the wife of plaintiff without the knowledge, authority, or consent of the said James Beeehler and Jennie Beeehler.

The trial court also found that the plaintiff and his wife did not do any of the things which by the terms of the alleged contract they were required to do.

The only argument made by the appellant upon the appeal is that the findings are not in harmony with any of the testimony in the record. The conclusive answer to this contention is found in the record, and it is only necessary to call attention to the portions of the record which support the findings; with the portions of the record in conflict therewith, we are unconcerned, under the familiar rule regarding the power of appellate courts to review questions of fact, upon which findings have been made by the trial court upon conflicting evidence.