Weil v. California Bank

THE COURT.

This is an appeal from a judgment for the plaintiff in an action for an accounting.

The plaintiff was the owner, as her separate estate, of certain apartment house property in the Pellissier tract in the city of Los Angeles. Her title was subject to a first trust deed in the sum of $40,000 and a second trust deed of $16,100. The second trust deed was in the process of foreclosure. The defendant theretofore had recovered and was the owner of a judgment against the plaintiff’s husband in the sum of $5,643.91, the payment of which was being demanded by the defendant at the time said foreclosure proceedings were pending. After negotiations between the parties hereto the plaintiff agreed to convey her equity in the apartment house property to the defendant subject to said deeds of trust. The defendant agreed to satisfy the judgment against Mr. Weil and, as “a part of the consideration” for the plaintiff's deed, to permit the plaintiff to occupy one of the apartments for about three

[540]

months thereafter. The entire agreement of the parties is claimed by the defendant to be evidenced by a letter prepared by an officer of the defendant, addressed to the defendant, and signed by the plaintiff and her husband, setting forth certain terms of an offer to the defendant. This offer was accepted by the defendant by written indorsement appended to the letter. Pursuant to this agreement the plaintiff’s deed was filed for record by the defendant and said judgment was satisfied of record. Thereafter the defendant disposed of said real property at a profit in the transaction, so the court found, of $4,076.

This action was based upon an alleged oral agreement entered into shortly before the signing of the aforementioned letter and said acceptance, under the terms of which oral agreement the defendant undertook to pay to the plaintiff whatever profit it might realize from the deal after deducting its investment therein.

The defendant objected to the introduction of any evidence of the alleged oral agreement on the ground that the entire agreement of the parties had been incorporated into the writing, and that the same superseded all negotiations or stipulations concerning the matter which preceded or accompanied the executing of the writing.