Jones v. Wilton

YORK, P. J. This appeal from a judgment in favor of respondent, an attorney at law, is prosecuted upon the judgment roll alone.

The complaint alleges that prior to September 5, 1928, respondent had rendered professional services on behalf of appellant, and that on said date an account was stated between them and an agreement executed by the terms of which appellant acknowledged he was indebted to respondent in the sum of $20,000 for such services; and for the purpose of securing the payment thereof, he agreed to assign to respondent certain trust deeds until the total assignments aggregated $50,000, at the same time guaranteeing that respondent should receive therefrom the sum of $20,000 with interest within thirty-six months of the date of execution of said agreement. He also guaranteed the payment of such sum irrespective of whether or not respondent received anything from the trust deeds. It is also alleged that pursuant to the agreement appellant did assign or cause to be assigned one trust deed in the sum of $10,000 which was later rendered valueless by the foreclosure.of a prior lien, and that no part [47]of said sum of $20,000 was ever paid or satisfied in any manner. A copy of the agreement was attached to the complaint and marked Exhibit “A”.

The answer denied the indebtedness and set up the following separate defenses to the action: (1) That there was no consideration for the agreement; (2) that a subsequent oral contract amounting to a rescission of the original agreement had been fully executed by the parties whereby certain real and personal property was conveyed to and accepted by respondent in full accord and satisfaction of any claims he might have had under the original agreement; (3) that payment had been made of all sums due under the agreement; (4) that said agreement provided that before it should become effective there should be assigned to respondent not less than $50,000 in first trust deeds and mortgages, and that no part of them had been assigned to respondent; (5) that the action is barred by section 337 of the Code of Civil Procedure.

At the time of trial, appellant by leave of court filed an amendment to his answer to the first amended complaint, and as a seventh separate and distinct defense alleged that false and fraudulent representations were theretofore made by respondent to the effect that “he would not enforce said agreement but would use it only to protect defendant in case defendant’s creditors attempted to collect against defendant’s properties or holdings and would act as trustee to collect any sums due the defendant and would hold such sums for the benefit of the defendant. That such representations were false and fraudulent . . . and were made by the plaintiff to induce the defendant to execute the said agreement. That plaintiff had no intention at said time to refrain from enforcing said agreement, but intended and at all times since, has intended to enforce said agreement. . . . That relying upon said false and fraudulent representations and believing said representations to be true, defendant did execute said agreement based upon his faith and trust in plaintiff as his attorney. ’ ’