Raboff v. Albertson
| Decision Date | 18 January 1954 |
| Citation | 265 P.2d 139,122 Cal.App.2d 555 |
| Court | California Court of Appeals Court of Appeals |
| Parties | RABOFF v. ALBERTSON. Civ. 19396. |
Albert E. Wheatcroft and Charles Murstein, Los Angeles, for appellant.
Paul R. Hutchinson, Los Angeles, for respondent.
This action against a wife to recover money lent to a husband (now deceased) is based upon an oral agreement of the wife, allegedly founded upon a new consideration, to repay the loan. The money allegedly was applied on the purchase price of a house which the husband and wife purchased as a residence for themselves. The title to the house was conveyed to them as joint tenants. In a nonjury trial judgment was for plaintiff. Defendant appeals from the judgment.
The court found: On May 11, 1946, Lee Albertson (the husband), in the presence of defendant Christine J. Allertson (the wife), represented to plaintiff that he had found a house which he wished to buy and that he needed $7,500 in addition to other loans to purchase the house. Plaintiff lent $7,500 to Lee Albertson and did not ask him for a promissory note or security for the loan. On said May 11 plaintiff delivered his check for $7,500 to Lee Albertson in the presence of defendant Christine J. Albertson, payable to Lee Albertson, as a loan on the purchase price of the house. The check was deposited in a joint bank account of Lee and Christine and was paid out of the account into the escrow set up for the purchase of the house. Title to the house was acquired in the name of Lee and Christine as joint tenants. Plaintiff received no security for the loan. Plaintiff asked Lee for some evidence of the loan of $7,500, and on August 5, 1946, Lee signed and delivered to plaintiff a writing as follows: 'I O U $7,500 Lee Albertson August 5th 1946 on my house.' The only house in which Lee had any interest, and which was referred to in said writing, was the said house which Lee and Christine purchased. It was the intent of Lee at the time he made the writing to encumber said property with a lien in favor of plaintiff to secure said loan. The said writing was sufficient to create such a lien. In each of the months of September and October, 1946, Lee paid $1,000 to plaintiff. On December 27, 1946, plaintiff loaned $1,000 to Lee to purchase an automobile. On September 22, 1947, Lee died. Defendant Christine Albertson, as joint tenant, succeeded to the interest of Lee in said house. Christine was appointed administratrix of his estate. After the death of Lee, plaintiff notified defendant that $6,500 was due on said loans. On November 19, 1947, defendant orally represented to plaintiff that she believed that she was legally and morally obligated for the payment of said debt to plaintiff. On said day defendant orally promised and agreed that if plaintiff would not take any action against her personally at that time, other than to file a creditor's claim against Lee's estate, and if plaintiff would place her on the payroll of Lee Products, Inc., at a salary of $400 a month for the year 1948, and if plaintiff would purchase the stock of Lee Albertson and defendant in said corporation, she personally would pay said $6,500 to plaintiff. Plaintiff accepted said offer, and they orally agreed that defendant would pay said $6,500 to plaintiff, that plaintiff would take no action for the collection of said money against defendant, that plaintiff would give defendant employment in Lee Products, Inc., at a salary of $400 a month for the year 1948, and that plaintiff would purchase the stock of Lee Albertson and defendant in said corporation for $5,000. Plaintiff performed all said agreements on his part to be performed, and he took no action for the collection of said debt other than to file a creditor's claim in the estate until the filing of this action on December 29, 1948, after said agreement was repudiated by defendant on December 22, 1948. Plaintiff caused defendant to be employed by Lee Products, Inc., during all the year 1948 at a salary of $400 a month. Plaintiff purchased the stock of Lee and defendant in the corporation for $5,000. Plaintiff would not have caused said employment of the defendant, nor have purchased said stock, had it not been for said promise of defendant. For a period of two years after said loan was made plaintiff had a good cause of action against defendant for the recovery of said money but the statute of limitations on said cause would have expired after two years, but defendant orally promised to repay the money on November 19, 1947, and on several occasions thereafter until November 27, 1948, when defendant agreed to pay the $6,500 due to plaintiff. On December 22, 1948, defendant refused to pay said balance of $6,500. Plaintiff has been damaged thereby in the sum of $6,500 together with interest thereon at 7 per cent. On December 23, 1947, plaintiff presented to defendant, as administratrix of said estate, a creditor's claim for $6,500, and on said day the claim was approved by said administratrix, and thereafter the claim was approved by the court. No part of said claim has been paid, and the estate is insolvent.
Appellant contends that the findings and judgments are not supported by the evidence. She argues that there was no evidence that she signed any writing wherein she agreed to pay the debt of her husband and therefore under the statute of frauds, Civ.Code, § 1624, an oral promise by her, if any, to pay such debt was invalid. Respondent asserts that the oral promise of appellant to pay the debt was supported by a new consideration which was 'fully executed,' and that under section 2794 of the Civil Code, subdivision (4), wherein 'the promise is upon a consideration beneficial to the promisor,' it is not necessary that her promise be in writing. Section 1624 of the Civil Code provides in part: (Italics added.) Section 2794 of the Civil Code provides in part: 'A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing: * * * (4) Where the promise is upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person; * * *.' Plaintiff (respondent) testified that in September, 1947 (the day after Lee's funeral), he asked defendant what was going to...
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...of the promise may be to pay the debt or discharge the obligation of another." (Emphasis added.) (To like effect: Raboff v. Albertson, 122 Cal.App.2d 555, 265 P.2d 139; Regus v. Schartkoff, 156 Cal.App.2d 382, 319 P.2d 721; Kale v. Bankamerica Agr. Credit Corp., 2 Cal.App.2d 113, 37 P.2d 49......
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...appealed only from that part of the judgment awarding money to defendant, and that part of the judgment was affirmed. Raboff v. Albertson, 122 Cal.App.2d 555, 265 P.2d 139. In the present action, plaintiff alleges that defendant knew at the time of filing his complaint in the prior action t......
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...debt or discharge the obligation of another. (Schumm v. Berg, 37 Cal.2d 174, 187, 231 P.2d 39, 21 A.L.R.2d 1051; Raboff v. Albertson, 122 Cal.App.2d 555, 560--561, 265 P.2d 139; see generally 2 Corbin on Contracts (1950) ch. 16, pp. 273 et In the instant case, it is clear that the leading p......
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Albertson v. Raboff
...appealed only from that part of the judgment awarding money to defendant, and that part of the judgment was affirmed. Raboff v. Albertson, 122 Cal.App.2d 555, 265 P.2d 139. 'In the present action, plaintiff alleges that defendant knew at the time of filing his complaint in the prior action ......