McElhaney v. McPherson

HALL, J.

Plaintiff appealed from the judgment in favor of the defendant and the order denying his motion for a new trial.

The action was brought to recover from defendant the sum of $725, which it is alleged she orally promised to pay plaintiff in consideration of the release and discharge by plaintiff of an antecedent and existing obligation due to plaintiff from one S. A: McPherson (the husband of defendant). (Civ. Code, see. 2794, subd. 3.)

The court found in favor of plaintiff as to the existence of the obligation alleged to be due from S. A. McPherson to plaintiff, but found that defendant did not promise or agree

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to pay plaintiff $725, or any other sum, for a release or discharge of such obligation, and that plaintiff did not cancel or release such obligation.

Plaintiff attacks the sufficiency of the evidence to support the findings in favor of defendant.

That the evidence in the record is sufficient to support the finding that defendant did not promise or agree to pay plaintiff the sum of $725 or any other sum we have no doubt.

Plaintiff and S. A. McPherson had had certain dealings for the sale of certain land belonging to said McPherson. S. A. McPherson had sued plaintiff, and had. recovered a judgment for the possession of the land against plaintiff, who had appealed therefrom. Plaintiff had brought suit against said S. A. McPherson for commissions as a broker for the sale of a portion of the land, and this suit was pending. He also asserted a claim against one Frisbie in connection with the same matter. S. A. McPherson had left the state, and plaintiff, Frisbie and defendant met in Oakland at the residence of Frisbie. At this meeting the terms of a settlement were arrived at as between plaintiff and Frisbie. Plaintiff testified that it was also agreed between him and defendant that she would pay him $725 for a release and discharge of his claims against her husband. The parties met the next day at the" office of M. 0. Chapman, an attorney, where an agreement between plaintiff and Frisbie was drawn up by Chapman and executed by plaintiff and Frisbie. A writing was also drawn in the form of an agreement between plaintiff and defendant. This was neither signed by plaintiff nor defendant, and while the things to be done by plaintiff are fully set forth in the writing, the amount of money to be paid by defendant to plaintiff in consideration thereof is left blank. The writing is unilateral in form, and was only intended to be signed by plaintiff, and recites that “for and in consideration of the sum of-dollars ... to me in hand paid,” etc., which is followed by words of present release and discharge of plaintiff’s demands against defendant’s husband, and covenants to satisfy and discharge of record a certain contract and to dismiss the pending suit against defendant’s husband. Plaintiff of course does not rely upon this writing, but testified that both at Frisbie’s house and at Mr. Chapman’s office defendant orally made the promise to pay him