Hofland v. Gustafson
| Citation | 132 Cal.App.2d Supp. 907,282 P.2d 1039 |
| Court | United States Superior Court (California) |
| Decision Date | 20 April 1955 |
| Parties | 132 Cal.App.2d Supp. 907 Thecla HOFLAND, Plaintiff and Respondent, v. L. H. GUSTAFSON, Defendant and Appellant. Civ. A. 8646. Appellate Department, Superior Court, Los Angeles County, California |
Edward Feldman, Alex D. Fred, Los Angeles, for appellant.
Gilligan & Prate, Los Angeles, for respondent.
Before BISHOP, Acting P. J., and PATROSSO and SWAIN, JJ.
The only issue involved on this appeal by defendant from the judgment of $1,297.25 based on the defendant's negligence and from the order denying defendant's motion for a new trial is the effect of plaintiff's attempt to rescind a written release.
A release had been presented to the plaintiff by the insurance investigator for defendant's insurance company, and was signed by plaintiff on June 16, 1953, approximately three weeks after her accident. It recited that 'For and in Consideration of the sum of Four Hundred Twenty xx/100 ($420.00) to me/us in hand paid by L. H. Gustafson the receipt of which is hereby acknowledged, I * * * hereby fully and forever release, acquit and discharge the said L. H. Gustafson * * * from any and all actions, claims and demands * * * it being understood and agreed that the acceptance of said sum is in full accord and satisfaction of a disputed claim * * * the amount stated herein is the sole consideration of this release and that I/we voluntarily accept said sum for the purpose of making a full and final compromise.' 'Thecla Hofland' (Signed.)
Before the check of $420 was received from the defendant's insurer, drawn on a Colorado Springs, Colorado, bank and dated June 24, 1953, the plaintiff's attorney had, on June 18, 1953, sent a notice of rescission to the insurer in Colorado. The grounds stated in the notice were mistake, undue influence and failure of consideration. No evidence was offered to prove mistake or undue influence. The only evidence of failure of consideration was the eight days which elapsed between the signing of the release and the receipt of the check by the plaintiff. After its receipt, the check was returned to the defendant, on July 2, 1953, without any attempt having been made by the plaintiff to cash it.
It is true as claimed by respondent, that although the genuineness and due execution of the release were admitted by her failure to file a verified denial, she is not precluded by that fact from asserting any defense she may have, including the legal effect of the release and failure of consideration. Sproul v. Cuddy, 1955, 131 Cal.App.2d 85, 280 P.2d 158.
Respondent's theory and also that of the trial judge in holding the release invalid was that as no consideration had passed and as the release had been signed by the plaintiff alone, it constituted merely a revocable offer.
In ascertaining the legal effect of a release, one must look to the instrument itself to determine the intent of the parties. Such an instrument is ordinarily presently operative once the maker has signed and delivered the writing. (Restatement of Contracts, section 402, comment b.) Paige v. O'Neal, 1859, 12 Cal. 483, 496.
A signature of the party being released is unnecessary to make a release legally binding on both parties where the instrument shows on its face that it was not intended to be signed by the party obtaining the release. Tindall v. Northern Pac. R....
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Johnson v. Norfolk
...127, 57 A.L.R. 279. It is binding on both parties even though the payment of the money remained to be performed. Hofland v. Gustafson, 132 Cal.App.2d Supp. 907, 282 P.2d 1039; Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751; Landau v. St. Louis Public Service Co., Mo......
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...(Civ.Code, §§ 1639, 1640; Crow v. P.E.G. Construction Co., Inc. (1957) 156 Cal.App.2d 271, 277, 319 P.2d 47; Hofland v. Gustafson (1955) 132 Cal.App.2d Supp. 907, 909, 282 P.2d 1039; see also: Rest., Contracts, § 404, subd. (1), p. 761; 5A Corbin on Contracts (1964), § 1239, p. 560 et Appel......
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Reynard v. Bradshaw
...of compromise and settlement of the claim. The same conclusion was reached upon a similar state of facts in Hofland v. Gustafson, 132 Cal.App.2d Supp. 907, 282 P.2d 1039. See, also, Ulrich v. McDonough, 89 Ohio C.A. 178, 101 N.E.2d 163; Segal v. Allied Mutuals Liability Ins. Co., 285 Mass. ......
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Sound/City Recording Corp. v. Solberg, Civ. A. No. 77-0648.
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Contract actions
...the release and receiving the check did not constitute failure of consideration. Hofland v. Gustafson , 132 Cal. App. 2d Supp. 907, 909, 282 P.2d 1039, 1041 (1955). A party may rescind for partial failure of consideration even if there has been partial performance by the party against whom ......