Putnam v. Putnam

NOURSE, P. The plaintiff commenced two actions to [762]recover sums alleged to be due under a written contract. The defendant answered, denying that the sums claimed were due, and setting up special defenses, one of which was the plea that these actions should abate the outcome of another action involving the same subject matter then pending on appeal. All defenses were summarily denied; the two actions were consolidated for trial, and plaintiff had judgment as prayed.

A brief statement of facts will suffice. In 1923 the parties, then husband and wife, entered into a written property settlement agreement which was approved and incorporated into a final decree of divorce. Under its terms the defendant agreed to pay to the plaintiff the sum of $75 monthly “for her care, maintenance and support, and the care, maintenance and support of said minor child, provided that if said second party shall divorce first party, and remarry, said allowance of $75.00 per month shall cease and terminate upon such remarriage, and thereafter first party shall pay to second party such monthly allowance for the care, maintenance and support of said minor child, as the parties hereto may mutually agree upon, and if they are unable to agree upon any such sum, then first party agrees to pay to second party for such care, maintenance and support of said minor child, such sum as may be fixed by the Superior Court of the City and County of San Francisco, State of California, as a reasonable sum for such purposes.”

Prior to the commencement of these two actions the husband commenced a proceeding in the same court in declaratory relief for a decree determining his rights and obligations under the agreement subsequent to the time when the minor son reached his majority. This proceeding went to judgment; an appeal was taken therefrom, and a reversal was entered in this court on May 5, 1942. (51 Cal.App.2d 696 [125 P.2d 525].) In due time thereafter the remittitur issued from this court and was filed with the superior court.

The main issue presented and decided on the former appeal was whether the husband was required to pay the stipulated sum of $75 monthly after the son had reached his majority. In holding that the contract did not contemplate such payments, and that the husband was entitled to a judicial determination of what his duties, under the contract should be since the time when the son had reached his majority this court said: (p. 699) “ . . . when the appellant agreed