Anderson v. Fratis

ADAMS, P. J. Plaintiff brought this action seeking to have partitioned between him and defendant certain real property standing in the names of the two parties as joint tenants, and consisting of a city lot and dwelling house thereon, where the two had lived for some 13 years in a meretricious relationship. Defendant answered and filed a cross-complaint attached to which was a copy of an agreement which had been entered into between the parties after their former relationship had been permanently terminated.

That agreement, stipulated to have been duly executed by the parties, recited that they were desirous of settling all [754]property rights growing out of their relationship, that defendant, the party of the first part, was to have the real property in controversy, certain defense bonds held in joint tenancy were to be divided equally, defendant was to pay to plaintiff $300 out of $400 which she had drawn out of a joint bank account subsequent to their separation, and she was to pay a promissory note of $200 which plaintiff had executed and delivered to the Graeser Realty Company. Also, defendant agreed to waive any and all causes of action for an assault and battery which plaintiff had committed upon her person.

Plaintiff, answering the cross-complaint, averred “that the said illegal and immoral cohabitation of and between the parties hereto was the sole and controlling consideration for the execution of the said agreement.”

At the trial of the action before the court without a jury, plaintiff’s only witness was defendant, called under Code of Civil Procedure, section 2055. It was stipulated that at the time the agrément was entered into the parties had separated and had no intention of resuming their relationship. It was also shown that defendant had paid the $300 to plaintiff, and that she had paid the $200 to the Graeser Realty Company.

The trial court resolved the issues in favor of defendant and made findings in conformity with the facts aforestated, and also found that the agreement was based upon a good and valid consideration; that defendant had paid plaintiff’s promissory note, returned the $300 to plaintiff, had fully and fairly performed all of the promises and conditions by her to be performed, and that such agreement and the waiver of her cause of action against plaintiff for assault and battery were good and adequate consideration for the promises of plaintiff in the agreement; and that the meretricious relationship of the parties did not enter into and was no part of the consideration for the making of the agreement relied upon by defendant.