Carlson v. Calhoun

McCOMB, J. From a judgment in favor of defendant after trial before the court without a jury in an action to recover for moneys loaned by plaintiff to defendant, plaintiff appeals.

Facts: The evidence disclosed that during the years 1948, 1949 and 1950, plaintiff loaned various sums of money to defendant and that on March 10, 1950, plaintiff executed a [517]bill of sale in favor of defendant covering certain personal property. The bill of sale was likewise signed by defendant. This instrument contained, among others, the following provision :

“It is farther agreed by me the seller Jerry C. Carlson that upon this date March 10th, 1950 that by buying this furniture I, Jerry C. Carlson release the Buyer David G-. Calhoun of all Obligation’s or Indebtedness both Real or otherwise from the begaming of time until the end of the world. That from this day on there is No Indebtedness Moral - Financial or Otherwise between us whats so ever.”

The trial court found: “It is true that on or about March 10th, 1950 there was a full settlement of all accounts, obligations and indebtedness between the parties hereto, including the promissory note of defendant and cross-complainant to plaintiff and cross-defendant in the principal sum of Three Thousand Five Hundred Thirty & 25/100 Dollars ($3,530.25), dated April 26th, 1948, and, for valuable consideration, plaintiff, in writing, released defendant from all obligations and indebtedness of every nature between them.”

This is the sole question necessary for us to determine: Was there substantial evidence to sustain the trial court’s finding, quoted supra, that plaintiff had released defendant from all obligations and indebtedness between them?

Yes. The bill of sale, of which the release set forth above was a part, was attached to defendant’s answer and made a part thereof. Plaintiff failed within 10 days after receiving a copy of the answer to file an affidavit denying its genuineness and due execution. As a result the same were admitted by plaintiff. (Code Civ. Proc., § 448*; Miller v. McLaglen, 82 Cal.App.2d 219, 224 [186 P.2d 48].) There was no evidence offered or received which tended to prove fraud in obtaining the execution of the instrument. Therefore, such instrument constituted substantial evidence to sustain the trial court’s finding. No useful purpose would be served by setting forth additional evidence in support thereof. (Thatch v. Livingston, 13 Cal.App.2d 202, 203 [56 P.2d 549].)