Levinson v. Silverman

TYLER, P. J.

Action to recover the balance of the purchase price of certain Russian rubles which the plaintiff’s assignor sold to the defendant. The complaint alleged the entering into of a written agreement between the defendant and the plaintiff’s assignor on the fourteenth day of February, 1918, wherein the plaintiff’s assignor agreed to sell and the defendant agreed to purchase 40,000 Russian rubles at the sum of fifteen cents per ruble, payable in installments of $100 or more until the entire amount of the $6,000 was paid, the agreement providing that payment should not cover a period in excess of two years; that the defendant then and there paid a deposit of $250 on account of the purchase price, said sum to apply on the last installment; that plaintiff’s assignor had delivered 4,000 rubles under the contract between the dates of February and June, 1918, and received therefor the sum of $600. It is then charged that defendant thereafter refused to accept and pay for the remaining 36,000 rubles at the rate stipulated, less the deposit of $250; that plaintiff’s assignor had upon various occasions offered and tendered to defendant the 36,000 rubles and demanded the balance of the purchase price less the deposit, but defendant failed and refused to pay for the same. Plaintiff further alleged that his assignor had kept and performed all the conditions incumbent upon him to be performed. He also alleged tender by a deposit of the rubles with the clerk of the court. Defendant denied that plaintiff’s assignor had kept or performed all the conditions or provisions of the contract incumbent upon him to be performed. By a second defense misrepresentation and undue influence on the part of plaintiff’s assignor were alleged. By a third and fourth defense lack of consideration and an accord and satisfaction were pleaded. Under the second, third,. and fourth defenses testimony was introduced to

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show that plaintiff’s assignor, one A. L. Greenberg, claimed to be a friend of defendant’s and had induced him to purchase the rubles. It also appeared that Greenberg had made statements to defendant that the rubles were better than United States Liberty bonds which defendant was desirous of purchasing. There was evidence to the effect that about the time the contract was entered into defendant was weak mentally and shortly thereafter was committed to the Southern California State Hospital as an insane person. That upon his release, the following- year, the parties had entered into a written agreement, for a consideration, whereby Greenberg had released defendant from all claims of every kind and character. The trial court, however, found against defendant on his affirmative defenses. It also found that plaintiff’s assignor, Greenberg, had tendered and offered the 36,000 rubles with the intent to pass title, but that defendant had failed and refused to accept or pay for the same. Judgment followed in favor of plaintiff in the sum of $6,768.92. Motion for a new trial was made and denied. This is an appeal from the judgment. No claim is made upon the question of the sufficiency of the evidence to support the findings upon defendant’s affirmative defenses, but it is claimed that the findings of a tender with intent to pass title of the rubles finds no support in the evidence.