Schwartz v. Shapiro

• Decision Date: 18 August 1964
• Citation: 229 Cal.App.2d 238,40 Cal.Rptr. 189
• Court: California Court of Appeals Court of Appeals
• Parties: Esther R. SCHWARTZ, Plaintiff and Respondent, v. David J. SHAPIRO and Eve L. Shapiro, Defendants and Appellants. Civ. 21442.

Page 189

40 Cal.Rptr. 189

229 Cal.App.2d 238

Esther R. SCHWARTZ, Plaintiff and Respondent, v. David J. SHAPIRO and Eve L. Shapiro, Defendants and Appellants.

Civ. 21442.

District Court of Appeal, First District, Division 1, California.

Aug. 18, 1964.

Rehearing Denied Sept. 10, 1964.

Hearing Denied Oct. 15, 1964.

Alfred M. Miller, San Francisco, for appellants.

J. Thaddeus Cline, San Francisco, for respondent.

MOLINARI, Justice.

On this appeal from an interlocutory decree of partition ¹ the principal question presented is whether the trial court erred in admitting parol evidence to explain the meaning of a writing which constituted a partial integration of an agreement. Having concluded that the evidence should not have been admitted, we hold that pursuant to the terms of said agreement plaintiff was not entitled to a partition of the property which is the subject of this litigation without first offering to sell her interest to defendants. Accordingly, that portion of the judgment decreeing partition must be reversed and the portion denying defendants relief on their cross-complaint affirmed.

On March 22, 1961, plaintiff, Esther R. Schwartz, and defendants, David J. Shapiro (hereinafter sometimes referred to as Shapiro), and his wife, Eve L. Shapiro, entered into a contract for the purchase of an apartment building for $143,000. At the time of entering into this contract it was discussed between plaintiff and defendants that the property was being purchased for purposes of resale and that it should be held for more than six months in order to obtain capital gain tax benefits. There was also a discussion about the possibility of either party selling his interest to 'someone not of the white race.' The sale was finalized on May 2, 1961 when a deed to said property was recorded. On March 30, 1961, and prior to the consummation of said sale, plaintiff and defendants affixed their signatures to a writing ² which reads as follows:

'San Francisco

March 30, 1961

'This agreement between Ester [sic] R. Schwartz & David & Eve Shapiro, being lawful owners of property known as 85 Heather, hereby agree that should either party agree to sell their 1/2 interest individually that sale of same shall be first offered to the remaining owner at the original purchase price.

'Should at any time owners of above property decide to sell or trade up, same shall be handled by Schwartz Realty. All funds to be handled thru a separate Bank account requiring signature of both interests.

David J. Shapiro

Eve L. Shapiro

Esther R. Schwartz'

Disputes between the parties having thereafter arisen concerning the management and sale of the property, plaintiff filed an action for partition. As an affirmative defense in their answer, and also by way of cross-complaint, defendants alleged that pursuant to the terms of the written agreement they were entitled to purchase plaintiff's interest in said property and that by reason of the commencement of the action plaintiff had offered to sell her interest in said property, which offer defendants, by such answer, accepted. Accordingly, defendants prayed that they 'be declared entitled to purchase the said property upon the terms and conditions set forth in the agreement of March 30, 1961 * * *.'

At the trial the court permitted plaintiff to testify over defendants' objection, but subject to a motion to strike, ³ that at the time the subject writing was signed it was discussed between the parties that the property was to be held for six months or more; that when it was sold it was to be sold by the parties jointly; that none of the parties was to sell his interest separately; and that the parties were to manage the property jointly, the defendants to live on the premises at a reduced rental and the plaintiff's firm to receive a monthly fee. ⁴

Prior to the giving of this testimony by plaintiff, Shapiro ⁵ had testified, on direct examination, that prior to the execution of the subject writing he had suggested to plaintiff, on several occasions, that they should have an agreement drawn by an attorney concerning 'the operation of the property'; that plaintiff stated she was busy with other matters; and that finally the parties met and entered into the writing in question; that it was agreed that they would put their "thoughts down on paper" until such time as they could get to an attorney so that "it is clear enough for an attorney to make something out of."

The trial court found that '[i]t was understood and agreed between them that they would hold and operate the property as co-partners for a period of six months to get advantage of long-term capital gain tax and thereafter sell said property. That at all times since the end of said six- months' period defendants have refused to sell or authorize the sale of said premises.' The court further found that: '[O]n March 30th and before the sale was consummated, the parties discussed the possibility of either party selling his one-half interest to an Oriental or other purchaser who might be considered by the other party. Defendant David J. Shapiro then wrote a longhand memorandum, Exhibit 'C' ⁶ herein, which was thereupon signed by the said parties. * * * That at said time and all times since, a partnership and confidential relationship existed between the parties. Neither party had the advice of an attorney before signing said document, but it was agreed between the parties that said document was preliminary to securing a formal contract to be prepared to an attorney. That in signing said document the parties relied upon their said prior understanding that they would hold said premises for six months and then joing [sic] in a sale of said property, and understood and intended that the provision 'should either party agree to sell their 1/2 interest individually' applied to the situation that the parties had been discussing, as aforesaid, namely, the possibility of either party selling his one-half interest to some undesirable third party.' Upon these findings the trial court concluded 'That to construe the said document executed by the parties under date of March 30, 1961 * * * so as to make the same apply to a sale of the entire fee under an order of Court herein would be grossly unfair and inequitable, and not in accordance with their mutual intent and consent at the time they signed said document.' The court below also reached the conclusion 'That the filing of the partition duit did not constitute an agreement by plaintiff to 'sell her 1/2 interest individually.' To the contrary, there can be no sale in a partion suit other than the sale of the entire fee and such sale must be made by the Court and not by either party.' Defendants appeal from the judgment 'signed to November 19, 1962 and filed November 26, 1962 and from the whole thereof.' ⁷ The record discloses that this judgment is the interlocutory decree of partition.

It is apparent from defendants' briefs that they purport to appeal both from the decree of partition and the trial court's adjudication that they are not entitled to specific performance, which determination is apparently based upon the trial court's conclusion that the subject writing was grossly unfair and inequitable. Defendants labor under the impression that the judgment denies them the relief prayed for in their cross-complaint. A perusal of the interlocutory decree of partition, which is the only judgment signed by the court and entered by the clerk, discloses that it is the usual decree ordering partition, sale and distribution of the proceeds. It is entirely silent on the issues tendered by the cross-complaint. Accordingly, it is apparent that we do not have one final judgment, a prerequisite to the right of appeal. (Gombos v. Ashe, 158 Cal.App.2d 517, 520, 322 P.2d 933.) Consonant with 'the one final judgment rule,' an appeal will be dismissed where a purported final judgment is rendered on a complaint without adjudicating the issues raised by a cross-complaint. (Nicholson v. Henderson, 25 Cal.2d 375, 381, 153 P.2d 945; Tsarnas v. Bailey, 179 Cal.App.2d 332, 337, 3 Cal.Rptr. 629; Verdier v. Verdier, 203 Cal.App.2d 724, 730-731, 22 Cal.Rptr. 93.) The notice of appeal in the present case is, therefore, premature. We are of the opinion, however, that the situation calls for the application of the rule announced in Gombos v. Ashe, supra, 158 Cal.App.2d pages 523-525, 322 P.2d 933, and since followed in other cases. (See Tsarnas v. Bailey, supra, 179 Cal.App.2d p. 337, 3 Cal.Rptr. 629; Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 702-703, 342 P.2d 987; Levizon v. Harrison, 198 Cal.App.2d 274, 284, 18 Cal.Rptr. 284; Shepardson v. McLellan, 59 Cal.2d 83, 88-89, 27 Cal.Rptr. 884, 378 P.2d 108.) The rationale of the Gombos rule is that an appellate court may, in its discretion, and in harmony with the relaxation of the rules on appeal, obviate the harsh result attendant premature appeals by ordering judgment, where the intention of the trial court is clear, rather than sending the case back to the lower court for the performance of that act. The Gombos procedure finds its basis in the interests of justice and is predicated upon the salutary desire of preventing unnecessary delay. In the present case it is obvious from the decree of partition and the findings of fact and conclusions of law that the trial court intended to adjudicate the rights of the parties with respect to the subject property by decreeing partition and denying any relief to defendants on their cross-complaint. By its decree of partition the trial court rejected defendants' prayer for specific performance because these remedies are inconsistent. The former decreed a forced sale of the entire property while the latter would have compelled plaintiff to convey her interest to defendants. It should be noted, moreover, that the same issues tendered by the cross-complaint are raised by affirmative defense in the answer. The Gombos procedure is...