Security First Nat. Bank of Los Angeles v. Rospaw

Decision Date01 November 1951
Citation237 P.2d 76,107 Cal.App.2d 220
CourtCalifornia Court of Appeals Court of Appeals
PartiesSECURITY FIRST NAT. BANK OF LOS ANGELES v. ROSPAW et al. Civ. 4179.

Harold A. McCabe, Fullerton, for appellants.

Mize, Kroese, Larsh & Mize, Santa Ana, for respondent.

GRIFFIN, Justice.

Plaintiff and respondent, as executor of the estate of Minnie Beal Miller, deceased, brought this action against defendants and appellants Frank Rospaw and wife to recover on a written promissory note dated April 3, 1945, for the principal sum of $3,000, payable in payments of $35 or more on the 3rd of every month, with interest from that date until paid at the rate of six per cent per annum.

Plaintiff alleges in paragraph I of the complaint that Mrs. Miller died February 21, 1949, and that respondent bank was duly appointed executor. Paragraph II sets up a copy of the note, alleges its delivery to Mrs. Miller and her husband, Arthur W. Miller. Paragraph III alleges the death of Mr. Miller on September 16, 1947, the entry of a decree establishing the fact of his death and terminating his interest in the note, that Mrs. Miller was sole owner thereof, and that the devisees of Mrs. Miller's estate are now owners of the note. Paragraph IV alleges default in payment and that $2,002.01, plus interest, is due thereon. Paragraph V alleges certain attorneys' fees are due under the provisions of the note.

The answer admits the allegations of paragraphs I, II and V, but denies that Mrs. Miller was the owner of the note and denies that her devisees are now its owner. It admits that the sums alleged in paragraph IV have not been paid, but denies that such sums are now due and payable, by reason of some alleged contemporaneous oral agreement, i. e., that it was orally agreed between the parties, at the time the note was signed (notwithstanding the written terms of the note) it was to be effective only so far as the monthly payments and interest became due, during the lifetime of the deceased payees, and that therefore the note should be null and void.

On March 10, 1950, the court granted respondent's motion for judgment on the pleadings upon the grounds that the answer failed to raise any issue of fact or state a defense. The judgment was entered on March 15, 1950, from which appellants appeal.

The only claim presented by the appellants on this appeal is that the court erred in granting the motion because the answer did set up a defense which should have been heard on its merits, i. e., that parole evidence was admissible for two reasons: (1) that there was a conditional delivery of the note for a special purpose, which was evidenced by a contemporaneous oral agreement; and (2) that under the pleadings it amounted to an offer to prove an executed oral agreement in the nature of accord and satisfaction, citing sec. 3097, Civil Code, and such cases as Ellington v. Pacific Coast Pulp, etc., Corp., 135 Cal.App. 703, 713, 28 P.2d 404; Peterson v. First National Bank of Bay Point, 101 Cal.App. 532, 536, 281 P. 1104; Treadwell v. Himmelmann, 50 Cal. 9; Silva v. Gordo, 65 Cal.App. 486, 224 P. 757; P. A. Smith Co. v. Muller, 201 Cal. 219, 256 P. 411; and Howard v. Stratton, 64 Cal. 487, 2 P. 263. Respondent contends otherwise.

The death of Mrs. Miller, the legal status of respondent as executor, the due execution and delivery of the note to Mr. and Mrs. Miller, and that the principal sum of the note as alleged in the complaint is unpaid except the sum of $997.99, is admitted by the pleadings. It is further admitted that one installment of $35, plus interest, was due and unpaid on February 3, 1949, and that no further payments on said note have been made. No point is made on this appeal about the allegation, which is denied in the answer, that at the time of Mrs. Miller's death she was sole owner of the note and that her devisees, subject to the administration of her estate, were thereafter the owners thereof. Under these circumstances, we will turn our attention only to the question of the claimed oral contemporaneous agreement alleged, and as to whether or not it was a provable defense. Overton v. White, 18 Cal.App.2d 567, 570, 64 P.2d 758, 65 P.2d 99.

We conclude that the allegations of the answer set forth only a claimed contemporaneous oral agreement between the parties to the note, affecting only the question as to whether or not payments thereon should continue after the death of the payees, which claimed oral agreement is contrary to the very terms of the written agreement. This same claimed defense was urged in Seth v. Lew Hing, 125 Cal.App. 729, 736, 14 P.2d 537, 14 P.2d 190, where the court said that such an oral agreement was inadmissible and that the maker of a promissory note cannot rely upon an oral promise not to pay in the absence of fraud, mistake, or want of consideration, and that when there is neither fraud nor mistake and a consideration has passed, the maker is bound by his written promise and may not rely upon parole evidence to prove a collateral agreement for relieving him from liability. Any evidence taken under this claimed defense would be inadmissible. Sec. 1856, C.C.P.; Sec. 1962, subd. 2, C.C.P.; Van Fleet-Durkee, Inc., v. Oyster, 91 Cal.App.2d 411, 205 P.2d 32; McArthur v. Johnson, 216 Cal. 580, 582, 15 P.2d 151. The general purpose of this rule is clearly reflected in the instant case where the payees are deceased and payors are endeavoring to establish some claimed oral contemporaneous agreement with them, contrary to the terms of the...

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10 cases
  • Perdue v. Crocker National Bank
    • United States
    • California Supreme Court
    • July 18, 1985
    ...Cir.1974) 493 F.2d 1285; Fowler v. Security First National Bank (1956) 146 Cal.App.2d 37, 303 P.2d 565; Security First National Bank v. Rospaw (1951) 107 Cal.App.2d 220, 237 P.2d 76.29 The Supreme Court has at times preempted state law on the basis of an implied, rather than an express, con......
  • Roemer v. Retail Credit Co.
    • United States
    • California Court of Appeals Court of Appeals
    • January 29, 1975
    ...excuse for changing the allegations of fact (3 Witkin, Cal.Procedure (2d ed.), § 1045, pp. 2622--2623; Security First Nat. Bank v. Rospaw (1951) 107 Cal.App.2d 220, 224, 237 P.2d 76; Tognazzi v. Wilhelm (1936) 6 Cal.2d 123, 127, 56 P.2d 1227; Findley v. Garrett (1952) 109 Cal.App.2d 166, 17......
  • Moving Picture etc. Union v. Glasgow Theaters, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • April 8, 1970
    ...between the same parties.' (B. & W. Engineering Co. v. Beam, 23 Cal.App. 164, 170, 137 P. 624, 626; Security First Nat. Bank of Los Angeles v. Rospaw, 107 Cal.App.2d 220, 223, 237 P.2d 76.) The 'accord' is the agreement whereby one of two parties having a right of action against the other u......
  • IMO Development Corp. v. Dow Corning Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • August 26, 1982
    ... ... Manfredi and Brien F. McMahon, Los Angeles, for defendant, respondent and cross-appellant ... In October 1975, the parties first entered into an agreement under which Dow Corning ... (Security First Nat. Bank v. Rospaw, 107 Cal.App.2d 220, ... ...
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