Short v. Short

STURTEVANT, J.

The plaintiff commenced an action to recover under two separate contracts. The defendant answered and a trial was had before the court sitting without a jury. That court made findings in favor of the plaintiff and from the judgment entered thereon the defendant has appealed.

Formerly the plaintiff and defendant were husband and wife. They had a child, a son, who was about ten years of age when this case was tried. During their married life the parties accumulated some community property. In January, 1927, they entered into an agreement which the parties termed the first agreement. By its terms the plaintiff agreed to sell to the defendant for the sum of $50,000 all of her rights in the community property; she also agreed that he might have the custody of their minor son and it was further agreed that she would go to Paris, obtain a divorce and marry James Bond. That agreement was partly executed. Mrs. Short conveyed her interests in the community property and the defendant has ever since retained the same. They could not borrow $50,000 on their properties, but they succeeded in borrowing $35,000, which in the form of a check Mr. Short delivered to James Bond, who invested the same, lost the most of it, and later paid the balance, $3,800, to Mr. Short, which he has retained ever since. In the course of a few months it transpired that James Bond declined to get married. Thereupon he dropped out of the arrangements and no other part of the so-called first agreement was ever carried into effect.

In November, 1927, and for some time prior thereto, many discussions occurred between Mr. and Mrs. Short regarding the $35,000. She claimed she had never received it. He claimed that he paid it to James Doud on her request. She denied that it was done wholly at her request and asserted that Mr. Short should have looked to the collection of it. After these discussions Mr. Short wrote out, signed, ac

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knowledged and delivered an instrument in writing as follows: “I hereby agree to pay to Dot Marie Wolfe Short three hundred dollars per month as long as she lives whether she remains my wife or divorced, or the wife of another, whether living in this country or abroad. ’ ’ That instrument the parties designate as the second agreement. After delivering it the defendant made the payments from time to time until the first of November, 1928. At that time he failed to make the payment due for that month and Mrs. Short instituted this action for the purpose of' "collecting the installment alleged to be due at that time.