Konecko v. Konecko
| Decision Date | 16 October 1958 |
| Citation | 330 P.2d 393,164 Cal.App.2d 249 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Stanley KONECKO, Plaintiff and Appellant, v. Josephine KONECKO, Administratrix of the Estate of Pauline Konecko, Deceased, Defendant and Respondent. Civ. 23040. |
Joan H. Martin, Los Angeles, for appellant.
William J. D. Lane, Los Angeles, for respondent.
Plaintiff appeals from the judgment and/or minute order granting defendant's motion to dismiss after the demurrer to his second amended complaint had been sustained and he had failed to further amend.
The question raised on appeal is whether the facts alleged in the second amended complaint are sufficient to constitute a cause of action. The complaint attempts to state four causes of action for rescission of a property settlement agreement executed by plaintiff and his deceased wife, and one cause of action for declaratory relief.
The following is a summary of the salient facts alleged by appellant in his second amended complaint.
April 20, 1955, plaintiff and his wife, Pauline Konecko, entered into an agreement by which they divided all their community property. Plaintiff (although represented by his own counsel) signed said agreement relying upon statements of decedent's attorney that the values of the properties to be conveyed to the respective parties were equal. That in fact, plaintiff's properties were worth only $7,632.10 and decedent's $18,055.03. That, on May 17, 1955, Pauline was granted an interlocutory divorce.
September 10, 1955, she died intestate.
November 9, 1955, defendant, Josephine Konecko, daughter of plaintiff and his deceased wife, was appointed administratrix of her mother's estate. November 26, 1956, defendant rendered her final account and petitioned for distribution to herself and her sisters and brother, as the only heirs of her mother.
February 28, 1957, plaintiff mailed notice of rescission to defendant. That this was not done sooner because plaintiff 'did not know that his children, in whom he had trust and confidence, would enforce it (the property settlement agreement) against him to keep him from sharing in the distribution of his deceased wife's estate.' That on April 20, 1955, decedent, because of her 52 years of age and physical infirmity 'was incapacitated from doing any business or making or entering into any business.' That defendant, 'with the intent of cheating and defrauding her father,' the plaintiff, induced her mother to sign the agreement.
It was further alleged that prior to April 20, 1955, plaintiff supported himself and decedent by buying and selling real property 'on his own account and not as a broker;' that in lieu of alimony plaintiff gave decedent a large portion of his working capital; and 'the main consideration in Stanley Konecko's (plaintiff's) entering into the purported property settlement agreement was to provide support for Pauline Konecko and said consideration has completely failed and become entirely void.'
That plaintiff was induced to sign the agreement by his wife's refusal to sign the transfers of real property necessary for him to carry on his business of buying and selling real property.
'That a controversy has arisen between plaintiff and defendant relative to their legal rights and duties under paid purported property settlement agreement, in that plaintiff alleges said agreement is of no force or effect because of innocent misrepresentation and/or mutual mistake, undue influence, failure of consideration and economic duress as aforesaid, while defendant is seeking to enforce it through the decree of distribution in Pauline Konecko's estate.'
Appellant, in his opening brief, urges that causes of action for rescission have been stated on the grounds of mutual mistake, undue influence, duress, and failure of consideration.
The innocent misrepresentation and/or mutual mistake...
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