Sears v. Schwartz

BISHOP, J. protem. A principle of law bars appellant from success on this appeal. It is expressed in Hoppe v. Robb, (1851) 1 Cal. 373, 374, in these words: “We have frequently held that we would not review the verdict of a jury upon a question of fact, where there was conflicting or contradictory evidence, upon which the verdict was based. The same rule applies to the finding of a judge, to whom a question of fact is submitted, and upon which he has passed.” Ninety years later we find the principle still in vogue. “A finding of the trial court upon conflicting evidence will not be disturbed on appeal if there is evidence of a substantial character which reasonably supports the judgment.” (Fewel & Dawes, Inc., v. Pratt, (1941) 17 Cal.2d 85, 89 [109 P.2d 650].)

This action was brought by the plaintiff, a Los Angeles school teacher, to rescind a property settlement entered into in December, 1934, two months before the plaintiff obtained a default decree of divorce from the defendant. By the settlement, the plaintiff surrendered her interest in the community property which consisted of a merchandising venture in the city of Glendale, entered into by the defendant in 1931, in return for which she was to, and did, receive a promissory note executed by the defendant, by which he bound himself to pay, in installments, the sum of $4,600, that being the sum which plaintiff claimed, anci the defendant did not dispute, she had loaned him in the early days of his business. In addition, according to plaintiff’s contention, the defendant agreed to keep in good standing during his lifetime a ten thousand dollar life insurance policy in which he was the assured and the plaintiff was named aS beneficiary, and in which she was to continue to be named as the sole [127]beneficiary. There is no dispute about the facts that the defendant paid off the note; that he kept the life insurance policy in good standing, with the plaintiff named as sole beneficiary, until May, 1940, but that then a new beneficiary was substituted for the plaintiff.

Plaintiff, in her complaint, took two positions: first, that the change of beneficiary was a breach of defendant’s promise to keep her as the sole beneficiary of the policy, a breach which constituted a failure of the most substantial part of the consideration she was to receive for entering into the settlement; and second, that if there was no such promise, then the agreement as to her was so unfair and inequitable that it constituted a constructive fraud upon her. With respect to the latter position plaintiff now argues that her community interest in the business was quite valuable, as her husband knew, but she did not; that she did not have the benefit of the advice of counsel; that as the note did not constitute legal consideration, because it was only a promise to pay that to which she was already entitled, it followed that that which she surrendered, by the agreement, greatly exceeded in value anything which she received.