Orkow v. Orkow

NOURSE, P. J.

sued for an accounting under a written assignment. From a judgment in her favor the defendant has appealed upon typewritten transcripts.

Plaintiff and defendant were husband and wife. On September 1, 1926, while living together in the state of New York, the defendant executed and delivered to the plaintiff an assignment in these words:

[51]

“In consideration of moneys advanced to me by my wife Vera I hereby assign to her thirty-three and a third (33-%%) per cent, in all plays, novels, motion picture scenarios and stories now and hereafter written by me and any and all returns or money received by me.

“It is understood that this assignment is free of all considerations or differences or eventualities that may arise between the parties hereto in the event of separation.

“I do this that her future may be happier than her past and secure.

“ (Signed) B. Harrison Orkow

“This makes any and all previous assignments invalid.

“B.'H. 0.”

Thereafter the plaintiff sued in the state of New York for a divorce. She prayed for alimony but the decree, which was in her favor, did not award alimony and did not refer to the assignment. On August 11, 1930, plaintiff commenced this action in Los Angeles County. She alleged the execution of the agreement and that defendant had obtained considerable sums of money from the sale of plays, novels, motion picture scenarios and stories. On the trial the execution of the contract was proved along with the fact that for twenty-eight weeks defendant had been employed by Warner Brothers at a salary of '$400 a week. The character of his employment was not shown and when he offered to prove that none of these earnings came from writing under the terms of the assignment his offer was rejected, the trial court ruling that the assignment covered all earnings from whatever source and for all future time.

The judgment must be reversed. So far as the assignment purported to transfer a portion of earnings not based upon present employment or an existing contract it was void. (Civ. Code, sec. 1045; 5 C. J., p. 871;