Hammond Lumber Co. v. Cravens

JOHNSON, J.,

pro tem.

— This is an appeal from a judgment in favor of plaintiff for the sum of $600 and interest, found by the court to be owing to plaintiff under verbal promises of defendant to pay said sum in consideration of plaintiff’s agreement to refrain from further prosecution of a pending action to foreclose a lien for materials supplied

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for and used in buildings constructed on land acquired by defendant after the lien attached, and to dismiss the action on receipt of the agreed amount. The appellant states that the appeal involves only the correctness of rulings of the trial court admitting oral testimony of the alleged promise by defendant to pay the antecedent debt of another, and of the court’s order denying defendant’s motion for a new trial.

During a period when the Title Insurance and Trust Company and J. T. Lyons were owners, or reputed owners, of the property subject to the lien, certain lumber used in the construction of buildings thereon was furnished by plaintiff, of the purchase price of which there remained unpaid a balance of $737.49. On July 18, 1916, plaintiff had instituted, and caused summons to issue in, an action to enforce plaintiff’s claim of lien against the property for the unpaid balance. Defendant was not a party to that action, but at a time in 1916, after the action had been begun and before service of summons on any of the defendants therein, Cravens, the defendant here, entered into a contract of purchase of the property, with part of the purchase price payable

in futuro,

and thereupon took possession. He stated in one part of his testimony that he knew of the lien on the property, in another part that he first learned that the lien had not been taken care of, and was a cloud on the title, when he asked for a deed, in the year 1918. Owing to some expectation of a settlement of the lien suit, summons was not served on any of the defendants until July 8, 1918, at which time it was served on the defendant Lyons, the only defendant ever served in that action. There was never any appearance in the action by Lyons or any other defendant. After the service on Lyons, no return of summons was made until July 29, 1920, more than three years after its issuance and after service of notice of motion by Cravens to dismiss the action under section 581a of the Code of Civil Procedure. The motion to dismiss was granted August 12, 1920, and this present action, based on previous verbal promises of Cravens to compromise and settle plaintiff’s claim for $600, was then begun. The complaint contains three counts, each pleading a separate promise by defendant at as many different times, the first in September, 1918, the second in January, 1919, and the third in June, 1920. The defendant denied all such promises, but the court found them all to