Chambreau v. Coughlan

• Decision Date: 08 July 1968
• Citation: 263 Cal.App.2d 712,69 Cal.Rptr. 783
• Court: California Court of Appeals Court of Appeals
• Parties: G. CHAMBREAU, Plaintiff and Appellant, v. J. M. COUGHLAN and Xerline Coughlan, Defendants and Respondents. Civ. 31470.

Page 783

69 Cal.Rptr. 783

263 Cal.App.2d 712

G. CHAMBREAU, Plaintiff and Appellant, v. J. M. COUGHLAN and Xerline Coughlan, Defendants and Respondents.

Civ. 31470.

Court of Appeal, Second District, Division 3, California.

July 8, 1968.

As Corrected July 31, 1968.

Hy Schwartz, Los Angeles, for plaintiff and appellant.

Hyman Goldman, Los Angeles, for defendants and respondents.

FRAMPTON, Associate Justice pro tem. ^*

Appellant brought an action wherein the sought recovery of the sum of $8,025 claimed to be due and owing by respondents for legal services rendered to them by appellant's assignor, Hy Schwartz, an attorney at law.

The cause came on for trial on April 16, 1964, before Judge Ben Koenig. At this time counsel for respondents stated to the court that the action was upon an account that covered a long period of time had a great many items, and that the respondents (defendants below) would force the appellant (plaintiff below) to prove every item of the account, and the time which would be required would be very lengthy. The trial judge strongly urged Mr. Schwartz (appellant's assignor) and his counsel to settle the matter and thereby avoid the time and expense of a lengthy trial, which the court did not wish to undertake. A stipulated judgment was thereupon entered as follows: 'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that plaintiff, G. Chambreau, recover of and from the defendants, J. M. Coughlan and Xerline Coughlan, and each of them the sum of Eight Thousand Twenty-five ($8,025.00) Dollars, together with interest from April 16, 1964, at the rate of seven (7%) percent per annum, together with court costs taxed at One Hundred Fifty-six and 19/100 ($156.19) Dollars, provided that execution on such judgment shall be stayed as long as defendants pay to the plaintiff the sum of Five Hundred ($500.00) Dollars on or before April 22nd, 1964, and the sum of Two Hundred ($200.00) Dollars per month on the 22nd day of each month thereafter, commencing May 22nd, 1964, until defendants have paid to plaintiff the total sum of Five Thousand Five Hundred ($5,500.00) Dollars, without interest, together with the costs herein of One Hundred Fifty-six and 19/100 ($156.19) Dollars, at which time the plaintiff shall give defendants a full satisfaction of judgment. The defendants shall not be required to pay any interest on said total sum of Five Thousand Five Hundred ($5,500.00) Dollars, payable as ordered in installments.

'IT IS FURTHER ORDERED that if the defendants default in the payment of any of the installments aforesaid, when due, totaling Five Thousand Five Hundred ($5,500.00) Dollars, then the foregoing installments payment provisions totaling Five Thousand Five Hundred ($5,500.00) Dollars, plus costs, shall be ineffective for any purpose and the judgment for Eight Thousand Twenty-five ($8,025.00) Dollars, plus interest and costs, less payments made to the date of such default shall be effective.'

Thereafter, respondents paid appellant the total sum of $5,500 plus $156.19 costs in 27 monthly installments from April 22, 1964, through June 22, 1966. The dispute here arises over the payment of the installment due on December 22, 1964, in the sum of $200. It is the claim of appellant that respondents defaulted under the terms of the judgment in not making this payment within the time prescribed, and therefore, due to such default, the amount of the judgment became $8,025, and the payment of $5,500 thereon plus costs did not, in fact, satisfy the judgment.

For convenience the appellant and his assignor will be referred to herein as the appellant.

The record discloses that the respondents forwarded to appellant their check number 700, dated December 15, 1964, in the sum of $200 in payment of the December 22, 1964, installment. Appellant deposited the check on December 19, 1964. The check was presented for payment to the Continental Bank on which it was drawn on December 22, 1964, and was returned bearing the legend 'reason returned N.S.F.' Respondents were first advised by appellant on or about January 7, 1965, that the check was returned unpaid, whereupon, on the same date, respondents, through their counsel, forwarded to appellant a bank cashier's check in the sum of $400 in payment of the December 22, 1964, installment and in prepayment of the January 22, 1965, installment. The letter of respondents' counsel transmitting the cashier's check of $400 erroneously stated that check number 700 was returned because the bank would not honor a check deposited in the account which had not cleared. This error was based upon an erroneous assumption of respondents, communicated to their attorney, at a time when they did not know when said check number 700 was deposited with the bank. It was not until approximately one and one-half years later that the respondents first saw a copy of their check number 700 indicating when it had been deposited. Respondents first saw the check or a copy of it, after it had left their hands, when it was attached as exhibit 'A' to the declaration of Hy Schwartz dated July 26, 1966, in opposition to respondents' motion to satisfy the judgment herein. It was then that respondents compared the date of deposit of check number 700 with their bank statement. The check was never returned to respondents by the Continental Bank or the appellant. The bank endorsements on the check show that it reached respondents' bank on December 22, 1964. The bank statement discloses that on December 22, 1964, respondents had available funds on deposit in the sum of $3,097.16. On January 7, 1965, when the letter of transmittal enclosing the $400 cashier's check was forwarded to appellant, respondents delayed depositing check number 700, and delayed depositing check numer 700, and that said check had reached the bank on December 28, 1964, the only day when respondents had insufficient collected funds on deposit to pay the check. On December 28, 1964, respondents had arranged a transfer of $3,550 from the Bank of America, Santa Monica--Western Branch to the Continental Bank, but such transfer was not shown as a credit on respondents' account with the latter bank until December 29, 1964.

The last installment payment on the judgment was made by respondents on June 15, 1966. On July 18, 1966, respondents filed their motion to compel satisfaction of judgment. This motion was heard on July 29, 1966, before Judge Bayard Rhone, who denied the motion without prejudice, stating that the motion could be renewed before Judge Koenig before whom the settlement judgment was made. On August 16, 1966, respondents filed a notice of motion to compel satisfaction of judgment which was heard before Judge Koenig. On September 8, 1966, as a result of the hearing on this motion, the order to compel satisfaction of judgment was made. The minuute order made relating to the granting of the motion contains the following: 'The court finds that such judgment has been paid in full.' The appeal is from the order.

The appellant claims that the order compelling satisfaction of judgment should be set aside upon the following grounds: (1) The terms of the judgment relating to the default in making the installment payments thereunder is a condition and not a forfeiture; (2) the motion is barred by failure to make the motion within a reasonable time not to exceed six months after ...