Mihojevich v. Harrod

BURKE, P. J. Plaintiff acquired a one-half interest in certain mining claims from defendants. Defendants transferred the remaining one-half interest to plaintiff as security for moneys advanced by plaintiff to defendants. Prior to these transfers to plaintiff the federal government filed two civil actions in the United States District Court for the Southern District of California, Central Division, one action to condemn the fee title to the property and the other to condemn a leasehold interest in the property. Defendants herein were likewise defendants in the condemnation actions although plaintiff was never served with process in those cases nor did he appear therein.

During the pendency of the condemnation suits, defendants and their attorney represented to plaintiff that if he would transfer the title to the mining claims back to defendants it would greatly expedite the settlement of the condemnation proceedings and enable both parties to secure compensation from the government for their property without delay. Defendants orally agreed that, in consideration of such re-transfer, an assignment to defendants of all rights to recover any prior rental value of the mining claims, and a disclaimer in the condemnation suits, defendants would pay to plaintiff one-half of their recoveries in the condemnation actions. Plaintiff agreed, and performed his part of the bargain.

Defendants recovered a gross amount of $92,400 from the government in the condemnation suits, and a net amount, after deduction of attorney’s fee and cost of litigation, of $57,-941.60. After receipt of such sum from the government, defendants repudiated their oral agreement with plaintiff to pay him one-half of such recovery. Plaintiff brought suit on the oral agreement and was awarded judgment in the amount of $28,970.80, being one-half the net amount recovered by defendants in the condemnation proceedings. The present appeal is from the judgment to such effect.

Defendants contend (1) that parol evidence was erroneously admitted to vary the terms of the written instruments by which defendants reacquired the property, (2) the proof was insufficient to hold defendants indebted to plaintiff, (3) the federal court condemnation judgment was res judicata in the matter, and (4) the disclaimer unconditionally released defendants.

Defendants contend plaintiff’s testimony of his oral agree[363]ment with defendant Floyd S. Harrod is not admissible to vary the terms of the grant deed and assignment received from plaintiff; that such instruments were complete in themselves and constituted one complete integrated agreement in writing.