46 Cal. 266, 3,570, Swift v. Swift

Docket Nº:3,570
Citation:46 Cal. 266
Opinion Judge:BELCHER, Judge
Attorney:Charles E. Huse, for Appellant. A. Packard, for Respondent.
Judge Panel:JUDGES: Belcher, J. Mr. Chief Justice Wallace did not express an opinion.
Case Date:July 01, 1873
Court:Supreme Court of California

Page 266

46 Cal. 266




No. 3,570

Supreme Court of California

July, 1873

Appeal from the District Court of the First Judicial District, County of Santa Barbara.


Charles E. Huse, for Appellant.

A. Packard, for Respondent.

JUDGES: Belcher, J. Mr. Chief Justice Wallace did not express an opinion.



Page 267

This is an action to recover something more than seven thousand dollars for money loaned and labor and services performed. The defendant, by his answer, denied all liability for the services, and denied that more than two thousand eight hundred dollars had been loaned to him by the plaintiff. It was also alleged that no part of the money had become due when the action was commenced. The case was tried before a referee, and judgment was reported and entered for the plaintiff. The appeal is from the judgment and from an order denying a motion for a new trial.

It appears from the record, that in June, 1868, the defendant purchased a farm in Santa Barbara County, which he proposed to improve by planting it in nut-bearing trees; that the plaintiff, who is a son of the defendant, went upon the farm with his father, and thereafter performed services in its management until shortly before the commencement of this action, and at various times advanced money for its improvement; that it was agreed between the plaintiff and defendant that the money should bear no interest, and

Page 268

should not be repayable until the farm should yield an income sufficient for that purpose over and above paying its own expenses and the expenses of the defendant's family; that in September, 1871, at which time the farm had yielded no surplus income, the plaintiff left the defendant's house, and shortly thereafter commenced this action.

The referee was of the opinion that, because the contract for the repayment of the money was not in writing, and because the money was to be " paid out of the proceeds of the farm, after expenses, and a number of years would necessarily elapse before the same could be paid, inasmuch as the enterprise consisted in the growth and culture of nut-bearing trees," the contract was within the Statute of Frauds, and the law would, therefore, imply a promise to presently repay the money.

1. We see no error in this conclusion of the referee. By our...

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