MASHBIR v. MASHBIR

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District Court of Appeal, Second District, Division 2, California.

MASHBIR v. MASHBIR.

Civ. 12358

Decided: February 20, 1940

Dockweiler & Dockweiler, of Los Angeles, for appellant Overton, Lyman & Plumb and Cecil A. Borden, all of Los Angeles, for respondent.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover a sum of money allegedly due under a separation agreement defendant appeals.

The material facts are:

Plaintiff's complaint alleged in substance that defendant owed her as arrearage under a separation agreement dated October 3, 1926, $10,466. Defendant by his answer denied generally the alleged indebtedness and as an affirmative defense asserted: “* that the agreement referred to in plaintiff's complaint, to-wit, the agreement of October 3, 1926, is no longer in force and effect, that on or about March 16, 1937, plaintiff and defendant made and entered into an agreement replacing said agreement of October 3, 1926, by said agreement of March, 1937, that under said agreement of March, 1937, said plaintiff, * waived and relinquished any and all rights accrued or accruing to her, the said plaintiff, with respect to any and all sums of money to which she was or thereafter would be entitled under said agreement of October, 1926, and fully released defendant of and from any and all obligations under said agreement of October, 1926.”

In rendering judgment in favor of plaintiff the trial court, among others, made the following finding: “6. The Court finds that it is not true, as alleged in defendant's Answer, or otherwise, that the agreement referred to in plaintiff's Complaint, to-wit, the said agreement of October 3rd, 1926, is no longer in force and effect, or that on or about March 16th, 1937, or at any other time, or at all, plaintiff and defendant made and entered into, or made or entered into an agreement replacing said agreement of October 3rd, 1926, or that under said alleged agreement of March, 1937, the plaintiff, subject to certain provisions or to any provisions with which defendant has complied and/or to certain or to any additional obligations which the plaintiff has assumed, waived and relinquished, or waived, or relinquished any and all, or any, or all, rights accrued or accruing to her with respect to any and all, or any, or all, sums of money to which she was or thereafter would be entitled under said agreement of October, 1926, and/or fully, or at all, released defendant of and from, or of, or from any and/or all obligations under said agreement of October, 1926.”

This is the sole question necessary for us to determine:

Was there substantial evidence to sustain the trial court's finding of fact No. 6 set forth above?

This question must be answered in the affirmative. Where the parties understand that, before a contractual relationship shall exist, the terms of their contract are to be reduced to writing and signed by them, a binding or completed contract does not arise until a writing evidencing the terms of their agreement has been executed by the respective parties. Dexter v. Ankiewicz, 26 Cal.App.2d 326, 333, 79 P.2d 400.

Evidence was received from which the trial court properly found that plaintiff and defendant separated in January, 1925, and entered into a separation agreement dated October 3, 1926, and were divorced in June, 1928.

From January, 1925, until January, 1937, there was considerable correspondence between plaintiff and defendant relative to defendant's failure to comply with the terms of the separation agreement. January 14, 1937, plaintiff wrote defendant a letter reading in part as follows: “Nearly three years have elapsed since we came to some sort of a temporary financial understanding which was for the time being and apart from the terms of our permanent contract. * The understanding was that you would send me $85.00 a month for a period of six months or so. * You informed Mr. Dixon at the time he was in Washington that you expected to be in very much better financial condition in a couple of years or so and would increase the amount as you were able. * I cannot help but feel you have arrived at the point where you can allow more than $85.00 a month. * Hoping that you will * try to comply with my reasonable request * (signed) Blanche.”

January 18, 1937, defendant replied to the foregoing letter in a telegram wherein he asked plaintiff, if, provided he paid her $125 per month, she would cancel past accumulations. January 19, 1937, plaintiff telegraphed defendant stating she would require further time to consider his proposal and the telegram contained this statement: “Suggest you commence payment at increased rate mentioned your wire to be credited on account until modification if any agreed to between us.”

January 21, 1937, defendant telegraphed plaintiff that he was mailing the regular remittance of $85 and was awaiting the modified contract mentioned in her telegram of January 19, 1937.

February 26, 1937, plaintiff's attorney wrote defendant a letter demanding full payment of the alleged arrearage under the separation agreement dated October 3, 1926. This letter, however, offered on behalf of plaintiff to accept in lieu of any balance due her under the agreement of October 3, 1926, the performance of certain conditions by defendant, which conditions were fully outlined therein. March 15, 1937, plaintiff's attorneys wired defendant as follows: “Your wire twelfth identical with your preceding proposal and still as unacceptable Stop have heretofore informed you one twenty five entirely inadequate Stop After careful consideration Mrs. Mashbir authorizes us to make following concessions She will waive accumulations provided you pay her punctually one fifty per month maintain life policies per our letter twenty sixth ultimo and bear reasonable and necessary expense boys college education regardless locality college Stop This her final determination and unless we have your acceptance of terms as herein outlined without any modification whatever by March eighteenth will proceed according to concluding paragraph our last letter.”

March 16, 1937, defendant wired plaintiff's attorney thus: “I accept terms as outlined in your telegram March fifteenth Stop Air mail necessary papers without delay.” (Italics added.)

In addition to the foregoing there was testimony that defendant left Washington on a business trip en route to the Orient and stopped in Los Angeles, where he met with plaintiff and her attorney and signed in duplicate an agreement embodying the terms set forth in the letter of February 26, 1937, from plaintiff's attorneys to defendant; that both copies of the agreement at the suggestion of plaintiff's attorneys were left with him pending the examination of a life insurance policy which defendant had obtained pursuant to the terms of the parties' modified agreement. The understanding being that, if the insurance policy was satisfactory to plaintiff, defendant would receive a signed copy of the agreement upon his return from the Orient; that thereafter the insurance policy was examined by plaintiff and her attorneys and returned to defendant's office in Washington without complaint or objection; that upon defendant's return from the Orient he was served with a notice of rescission of the contract which the parties had entered into predicated upon the alleged fraud of defendant in misrepresenting his financial condition.

In the instant case the trial court's inference that the parties contemplated that their agreement should be reduced to writing and signed by them before it became effective finds substantial support in the evidence that defendant on March 16, 1937, in accepting plaintiff's offer wired “Air mail necessary papers without delay,” and further that later, when defendant signed both copies of their proposed agreement, he left them with plaintiff's attorneys on the understanding that, if certain insurance policies were satisfactory, a signed copy of the agreement would be delivered to defendant. This evidence indicates that neither plaintiff nor defendant considered their negotiations operative until their agreement had been reduced to writing, signed, and a copy delivered to each.

Therefore, applying the above-mentioned rule of law to the finding of the court set forth above, which we have indicated is sustained by substantial evidence, the parties' negotiations were never completed and the original separation agreement of October 3, 1926, was not superseded by a subsequent agreement.

In all of the cases relied on by defendant, such as Nash v. Kreling, 6 Cal.Unrep. 238, 56 P. 262; Conner v. Plank, 25 Cal.App. 516, 144 P. 295; Hollenbeck v. Lunderville, 67 Cal.App. 432, 227 P. 679, the trial court found that the parties by their negotiations intended that there should be a binding contract prior to the to the reduction of their negotiations to writing, or the evidence was such that only one conclusion could be reasonably drawn therefrom, to-wit, that the parties intended the correspondence passing between them to constitute a binding contract prior to the time of the preparation and signing of any formal agreement.

Further discussion of these cases and the able argument predicated by counsel thereon is therefore unnecessary.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.

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