Royer v. Kelly

SHAW, J.

The plaintiff sued to recover the sum of twenty-two thousand four hundred dollars, claimed to have been owing to him from the decedent, Caroline M. Conn, at the time of her death, upon two agreements in writing between them, one executed on September 10, 1907, the other on October 6, 1911.

The answer alleged as a defense, among other things, that each of said agreements was executed without any consideration and was obtained by undue influence. The court found that there was no consideration for either of the contracts

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and gave judgment for the defendant. The plaintiff appeals. He claims that said finding is contrary to the evidence.

By the writing of 1907, Mrs. Conn agreed to furnish and establish a machine plant for light manufacturing, at a cost not to exceed twenty-five thousand dollars, to be located near Los Angeles, and to authorize Royer, as her agent, to buy the machinery therefor, ship the same to Los Angeles, secure a suitable location and set it up ready for operation, and she thereby appointed him as general manager of the plant. She was to have all the net profits of the operation of the factory until the “entire purchase price,” with six per cent interest, was returned to her, whereupon the title to the plant should vest in Royer. He agreed to manage the plant and pay her the net profits, to be applied as first stated. It further provided that if she died before the net profits had fully paid for the plant, Royer should have the option either to take the plant as his own without further payment, or, in lieu thereof, to accept from the estate of Mrs. Conn, the sum of twenty-five thousand dollars. It further declared that the agreement was made to carry out the wishes of the deceased husband of Mrs. Conn, said wishes being that on the death of both Mrs. Conn and her husband, Royer “should, at his option, have said plant, or the sum of twenty-five thousand dollars, for services performed by said second party (Royer) for said first party (Mrs. Conn) and her husband.”

The agreement of 1911 recited that whereas Mrs. Conn and Royer have had “numerous dealings with each other which have never been properly adjusted, now this agreement is made for the purpose of settling all differences now existing between the said parties.” It then declared that the agreement of 1907 “is now in full force and effect,” except as in the later agreement specified. It then provided that whereas Royer has not received the machine plant, as provided in the agreement of 1907, now, therefore, he is entitled to twenty-five thousand dollars out of the estate of Mrs. Conn, to be paid as a debt against her, and that all sums then owing by Royer to her on promissory notes shall be deducted from said twenty-five thousand dollars. At her death he was owing her two thousand six hundred dollars on a promissory note, which sum he deducted in the statement of his claim filed against her estate, leaving the balance of twenty-two thousand four hundred dollars.