Boyer v. Woodall

DORAN, J. The complaint herein is for ejectment to recover possession of certain real estate located in the city of Los Angeles, and alleges that the respondent had defaulted in the making of payments required under an agreement to purchase the real estate dated August 30, 1945, for which reason respondent’s rights as purchaser had terminated. Respondent’s answer sets up a previous contract dated May 10, 1944, amended about April 9, 1945, and alleges that the contract of August 30, 1945, was without consideration, and that respondent was in possession under the previous contract as amended. The answer prays that the court adjudicate respondent’s rights, determine the amount due and permit respondent a reasonable time to make the defaulted payments.

The facts, as found by the trial court and supported by the record, may be summarized as follows. Charles A. Bank, an attorney at law and the original plaintiff, owned a three-tenths interest in the property, holding the remainder as trustee for other persons. After defaults by respondent in respect to payments called for in the original purchase contract of May 10, 1944, an action to recover possession was commenced by Attorney Bank, in propria persona, followed by a reinstatement agreement and amended contract dated April 9, 1945.

This amended contract was in turn followed by an ejectment action by Bank, in propria persona. While the latter action was pending respondent called at Bank’s office and was advised by the attorney-plaintiff, as testified to by respondent, “that I was all washed up, I had forfeited all my right and title, there was nothing left but to go out. . . . Finally, when he saw how badly I felt, he said he would accept the money under one consideration, if I would pay the contract up to date, in full, and give him the privilege of making a new contract, adding a thousand dollars to the contract, paying him $250 for a title fee, and monthly payments.” The attorney prepared such a contract which described the $250 as for attorney fees, mailed it to respondent who signed the same and returned it in person to Attorney Bank. Respondent was not then represented by an attorney. Bank thereafter filed the present action in ejectment, based upon respondent’s alleged default in performance of the last contract.

[764]The trial court found, among other things, that the provision in the final contract of August 30,1945, by which respondent promised to pay Charles A. Bank the sum of $250 as attorney fees “was and is null and void and entirely lacking in consideration, but that said agreement to pay attorney fees was severable from the remainder of said contract and does not vitiate the same ’ ’; that otherwise said contract was in full force and effect at the time of filing the present action, and was supported by sufficient consideration. The court further determined that 11 at the date of filing of the Complaint herein, defendant Sarah F. Woodall, as buyer, had paid ... all sums due and owing,” and “That plaintiff is not entitled to judgment for possession of said real estate” except as later specified in the conclusions of law.