Smith v. Smith

PULLEN, P. J. A modified final decree of divorce between the parties hereto was entered on July 14, 1936, wherein defendant was required to make certain monthly payments to plaintiff as alimony, and to pay to plaintiff the sum of $500 for legal expenses. Thereafter defendant, having failed to pay this sum of $500, was cited for contempt, but after a hearing the same was dismissed.

On May 27, 1938, a motion for execution upon the modified final decree of July 14, 1936, was heard and denied. From that order this appeal is taken on the ground the evi[653]dence was insufficient to support the findings that there was not due to plaintiff the sum o£ $500 for legal expenses; that any sum had been paid on account thereof; that plaintiff had, for a consideration, released or discharged the defendant from the payment thereof, or that any of the matters therein involved had been previously adjudicated in the contempt proceeding, or that the judgment in the contempt proceedings was a bar to these proceedings.

The determination of this ease depends largely upon the effect of a receipt given by plaintiff to defendant in these words: “Received of Sidney V. Smith Jr. all moneys due to date under any and all orders in the above entitled matter, including the order made by Judge Dierup on the 14th day of July 1936, from which 9,n appeal was taken by the above entitled defendant. Dated June 8, 1937.

“Elaine T. Smith DeWitt, “Plaintiff.”

This receipt and $200 had been sent to Mr. Eugene D. Bennett, an attorney in San Francisco by the attorney of defendant, and he was directed to deliver to plaintiff the $200 upon her signing the receipt. On June 8, 1937, plaintiff called at the office of Mr. Bennett and offered to sign the receipt. Mr. Bennett expressed the desire to discuss the matter with Mr. Treadwell, her attorney, but she said such was unnecessary. Nevertheless, Mr. Bennett called the office of Mr. Treadwell, but he was out of town. He then explained to the secretary for Mr. Treadwell the request of plaintiff that he, Mr. Bennett, had been directed to pay her the $200, and that in view of the request and his instructions he would have to do so. Plaintiff then signed the receipt and Mr. Bennett gave her the $200. Plaintiff claims she did not know her release covered the matter of attorney fees or that she had anything to do with that matter, but there is no claim here of undue influence or any misrepresentation. In fact there is no evidence of anything of that nature, and the language of the receipt seems clear and comprehensive.