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District Court of Appeal, First District, Division 3, California.

Miriam Miller HARTMAN, also known as Miriam Miller, Plaintiff and Appellant, v. Burke E. BURFORD, as Executor of the Estate of Katherine G. Miller, also known as Katherine Gardner Miller, deceased, et al., Defendants and Respondents.

Civ. 22611.

Decided: March 28, 1966

Hutchinson & Quattrin, J. Albert Hutchinson, San Francisco, for appellant. Burford, Hubler & Burford, Porterville, Carr, McClellan, Ingersoll, Thompson & Horn, by Luther M. Carr, David C. Carr, Burlingame, Alef & Schnitzer, Los Angeles, and Thomas, Snell, Jamison, Russell, Williamson & Asperger, Fresno, for respondents.

The appellant brought this action seeking specific performance of an oral agreement alleged to have been made between her parents, Austin and Katherine Miller, whereby the parents agreed to leave their respective estates to each other, on the understanding that the survivor would leave his or her estate to their three children in equal shares.   Respondents denied the existence of the oral agreement.   Appellant demanded a jury trial.   The jury found that appellant's parents had not entered into the alleged oral agreement.   The trial judge, considering the verdict of the jury to be advisory only, adopted it as his own, but also found independently that the oral agreement had not been established, and entered judgment for respondents.

Appellant's principal contentions on appeal relate to her right to jury trial, error in the admission of certain evidence, and in the giving and withholding of jury instructions.   These contentions have merit, and compel reversal of the judgment.

Austin Miller died in 1955 and left his entire estate to appellant's mother Katherine.   Shortly after Austin's death Katherine executed a will leaving her property to her three children in equal shares.   Before her death in 1960, however, Katherine executed her last will, by the terms of which she left one-third of her estate to each of two children, and placed the remaining one-third in trust for the benefit of appellant.   Under the terms of the trust appellant is to receive from trust income only such sums as the trustee, in his sole discretion deems necessary to supplement her other income “ * * * to provide for her support and maintenance.”   Upon appellant's death, the remaining trust property is to be distributed to Katherine's living grandchildren.

We must first determine whether appellant had a right to a jury trial, or whether the trial court was correct in treating the jury as advisory only.   If appellant had a right to have the issues decided by a jury, then errors in the admission of evidence and in instructions to the jury become important, and if present their prejudicial effect must be considered.   On the other hand, if appellant was not entitled to a jury trial, any misdirection of the advisory jury would be immaterial.

 We think it clear that appellant had a right to a jury trial on the basic issue upon which the entire litigation turns, namely, the existence of the oral agreement claimed by appellant.   The agreement was alleged by appellant, and denied by respondents.   In cases such as this, where the existence of the agreement is the point in issue, not its validity or its terms, and the evidence is conflicting, the issue must be decided by a jury, if a jury is demanded.  (Treadwell v. Nickel, 194 Cal. 243, 262–263, 228 P. 25.)   In 17A C.J.S. Contracts § 611, pages 1225–1226, it is said:  “ * * * where the existence and not the validity or construction of a contract or the terms thereof is the point in issue, and the evidence is conflicting or admits of more than one inference, it is for the jury or other trier of the facts to determine whether the contract did in fact exist, and ordinarily it is not for the court to assume and to instruct the jury, as a matter of law, that it did or did not exist.”   It is true that appellant's action is of a hybrid character, in that it raises both legal and equitable issues.   Nevertheless, appellant was entitled to a jury trial as a matter of right on the legal issue concerning the existence of the oral agreement.  (See Farrell v. City of Ontario, 39 Cal.App. 351, 357, 178 P. 740;  Robinson v. Puls, 28 Cal.2d 664, 171 P.2d 430;  Franklin v. Southern Pacific Co., 40 Cal.App. 31, 33, 180 P. 76;  Pacific Western Oil Co. v. Bern Oil Co., 13 Cal.2d 60, 69, 87 P.2d 1045;  Dills v. Delira Corp., 145 Cal.App.2d 124, 128, 302 P.2d 397;  2 Witkin, Calif.Procedure, p. 1760.)   Since appellant's right to a jury trial on the basic issue presented is clear, we must examine her contentions that inadmissible evidence was presented to the jury over her objection, and that the jury was not properly instructed, to her prejudice.

Respondent Burford, by way of an affirmative defense, pleaded in substance that appellant was a spendthrift, an alcoholic, and was, at or about the time her mother prepared her last will, confined to the Agnews State Hospital.   Appellant objected to this pleading and moved to strike it, but her motion was denied.   At trial, over appellant's objection, respondent Burford successfully offered a great deal of evidence tending to depict appellant as an alcoholic.   Records of the Agnews State Hospital relating to appellant's confinement there were received in evidence and were before the jury during its deliberations.   Most of this evidence related to events and circumstances that occurred after the time appellant claims her parents entered into the oral agreement, and after the death of her father Austin Miller.

 Respondents contend that facts and circumstances concerning appellant's alcoholism were admissible in evidence on the issue of appellant's credibility and also on the issue of estoppel.   With respect to the credibility of a witness, it is the general rule that any fact having a tendency to cast light upon the accuracy or truthfulness of the testimony of a witness may be received in evidence, and considered by the trier of fact in determining the credit to be given the testimony of the witness.  (98 C.J.S. Witnesses § 460.)   For example, it may be shown that a witness was intoxicated at the time of the happening of the events related by the witness in his testimony.  (Witkin, Evidence, p. 687.)   On the other hand, evidence to show that the witness is habitually addicted to the use of alcohol is generally excluded.  (People v. Stanley, 206 Cal.App.2d 795, 798, 799, 24 Cal.Rptr. 128;  McCormick, Evidence, pp. 98–99.)   Here, evidence of appellant's alcoholism would be inadmissible for the purpose of challenging her credibility.

 We also fail to see how such evidence is admissible on the issue of estoppel.   If the agreement was in fact made, then appellant's alcoholism could have no bearing at all upon her mother's obligation to perform.   Nor can respondents successfully argue that the disposition made by appellant's mother was a wise one, and in appellant's best interests.   Good motives do not justify a breach of contract.   We think the evidence concerning appellant's alcoholism had no proper place in the trial and that its presence was prejudicial to appellant's case.   In conjunction with other errors hereafter noted, we believe it contributed to denial of a fair trial to appellant.

At least one instruction given by the trial court was erroneous under the facts of this case, and prejudicial to appellant.   The court told the jury:  “Not only is the plaintiff, Miriam Hartman, under the ordinary burden of persuasion in a civil case, but since she is seeking to impose a constructive trust upon the estate of the deceased mother, Katherine Miller, contrary to the mother's expressed testamentary wish, she must establish the alleged oral agreement by a preponderance of the evidence, and further, that the plaintiff, Miriam Hartman, suffered an unjust and unconscionable injury and loss by reason of her mother's failure to bequeath to plaintiff her one-third share free of the trust.   Therefore, plaintiff must convince you not only that she has presented the preponderance of the evidence but that her evidence of the alleged oral agreement was clear and convincing.”

 This instruction deals with appellant's burden of proof.   It correctly points out that, in actions such as this one, appellant must establish the alleged oral agreement by clear and convincing evidence.  (Rolls v. Allen, 204 Cal. 604, 269 P. 450;  Notten v. Mensing, 3 Cal.2d 469, 477, 45 P.2d 198;  Khoury v. Barham, 85 Cal.App.2d 202, 211, 192 P.2d 823.)   However, that portion of the instruction which told the jury that appellant must show that she “ * * * suffered an unjust and unconscionable injury and loss by reason of her mother's failure to bequeath to plaintiff her one-third share free of the trust” is erroneous when applied to our facts.   Under the language of this instruction, even though appellant's evidence convinces the jury that the oral agreement alleged was in fact made between Austin and Katherine, recovery might be denied on the ground that Katherine had placed a portion of her property in trust for appellant, and hence appellant could not show unjust or unconscionable injury by Katherine's violation of the oral agreement.   But appellant need not show that she will suffer an unconscionable injury and loss if the oral agreement is not enforced.   The agreement, if established, is one between Austin and Katherine.   Austin has performed it.   Katherine has accepted the benefits of it, but has not given her performance.   If the agreement is not enforced, unconscionable loss and injury will be visited upon Austin, who has performed.  (See Brewer v. Simpson, 53 Cal.2d 567, 592, 2 Cal.Rptr. 609, 349 P.2d 289.)   As the Supreme Court noted in the cited case, the court's concern in enforcing oral agreements such as the one alleged here, is not that a donee beneficiary such as appellant, should receive something for which she has not paid, but that oral promises of the contracting parties should be performed.   As the court said in Notten v. Mensing, supra, 3 Cal.2d 469, 474, 45 P.2d 198, 201 “ * * * when two parties execute reciprocal wills pursuant to an oral agreement, and one of the parties dies before either will is revoked, and the other party accepts the benefit of the decedent's will, and then revokes, a constructive fraud sufficient to raise the estoppel has been practiced on the first decedent and on the beneficiaries of the oral agreement.”  (See also Lake v. Jackson, 191 Cal.App.2d 372, 376, 12 Cal.Rptr. 652.)

 Appellant also properly complains of the trial court's refusal to give any instructions to the jury on the subject of contract formation.   Since the issue to be decided by the jury was whether an oral contract existed, some instruction on that subject should have been given.   Appellant tendered instructions relating to such subjects as consent, consideration, definition of contract, and oral contracts.   Some of these were appropriate to the issues presented.   We need not pass upon the propriety of each instruction tendered by appellant.   It is sufficient to say that, on this issue some guidance was needed by the jury, and that it was error to refuse all instructions relating to the law of contracts.  (Williams v. E.W. Robinson Van Lines, 46 Cal.2d 14, 17, 18, 291 P.2d 453;  Witkin, Calif.Procedure, Appeal, 1965 Supp., p. 890.)

 From our review of the record we conclude that the cumulative effect of the errors complained of operated to deny appellant a fair trial and reversal of the judgment is compelled.   The provisions of our Constitution (Art. VI, § 41/212) cannot operate to sustain the judgment where, as here, the result of error is to deny a fair trial.  (Gee v. Fong Poy, 88 Cal.App. 627, 645, 647, 264 P. 564;  Herbert v. Lankershim, 9 Cal.2d 409, 476, 71 P.2d 220;  3 Witkin, Calif.Procedure, Appeal, § 100.)

Judgment reversed.

SALSMAN, Justice.

DRAPER, P.J., and DEVINE, J., concur.

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