HERBERT v. LANKERSHIM

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

HERBERT v. LANKERSHIM et al.*

Civ. 10264.

Decided: December 13, 1935

J. Wiseman Macdonald, of Los Angeles, in pro. per. Swaffield & Swaffield, Kenneth Sperry, and Joseph E. Madden, all of Long Beach, for respondent.

After the rejection of her claim by the executors of the will of the late Col. J. B. Lankershim, plaintiff commenced this action, basing her complaint upon an instrument signed by Col. Lankershim in his lifetime. Upon the trial by jury a verdict was returned in favor of plaintiff for $500,000 and interest. From the judgment and an order denying a motion for judgment notwithstanding the verdict, the defendant executors appeal.

Under the heading “Why the Judgment Should Be Reversed,” in a brief filed by two of the executors, Doria C. Lankershim and John I. Lankershim, the main contentions upon which a reversal of the judgment is sought are set forth. These contentions, which will be considered in the order set forth in the brief, are as follows: “1. The execution of exhibit 1 (to which the judgment gives effect and which is, of course, the sole basis for the judgment) is proven–if at all–by the testimony of Miss Stella McKee and since her testimony is irreconcilable with certain physical facts indisputably established, it has no probative force and must be disregarded. 2. Assuming, without admitting, that Exhibit 1 is proven to have been duly executed, Exhibit 1 constitutes an executory, express promise to pay a sum certain, and is not supported by a good consideration, since it was given solely in consideration of completed or past services for which the promisor was already obligated to pay their reasonable value. The trial court's rulings on the admission of evidence and in respect of the charge to the jury on this issue were erroneous. 3. Relevant and material declarations or admissions of Mrs. Herbert were excluded by the court's rulings. 4. Error was committed by limiting defendants' qualified handwriting experts in the statement of their reasons for their opinions to the physical facts observed by them in the questioned document and by not permitting them to state the general data and scientific principles and knowledge upon which, in conjunction with the physical facts, their opinions were based. 5. The trial court by inconsistent rulings, adverse comments in the jury's presence, and limitations on the introduction of evidence, denied defendants a fair trial.”

In their first contention defendants ask the court to hold in effect that there is no substantial evidence to support the implied findings of the jury. Mrs. Herbert, the plaintiff, was prevented by the provisions of section 1880 of the Code of Civil Procedure from testifying as to any matters of fact occurring before the death of Col. Lankershim. A witness in her behalf, one Stella McKee, testified that she was present when the instrument was signed by Col. Lankershim on October 10, 1927; that Col. Lankershim made remarks to plaintiff showing his appreciation of her services and said: “Now I am going to make good the promise I made to you; I am going to pay you well for your services;” that he went to a dresser, secured a piece of paper and pen and ink, and asked Mrs. Herbert to write what he dictated; that he dictated something like this: “Payable to Irene Herbert or Mrs. Edres Herbert $500,000 one month after my death from my estate or trust fund for her loving kindness and protection to me since January, 1924.” These words are almost identical with the words appearing on the instrument admitted in evidence as Exhibit 1 and which was admittedly signed by Col. Lankershim. The witness further testified that Mrs. Herbert wrote the language dictated, read the document to Col. Lankershim, and handed it to him; that he looked at it and signed it and handed it back to Mrs. Herbert; that Mrs. Herbert said, “I appreciate what you have done for me for the services I have rendered”; that she brought the note over to the witness, who took it in her hands and read it and returned it to Mrs. Herbert; that Col. Lankershim told Mrs. Herbert to take it to the bank and keep it there until after his death and then to take it to his attorney, who would see that she received the money. The witness Ruth Allen testified that later in the day of October 10, 1927, Col. Lankershim said to her, “I told you that I was going to pay Mrs. Herbert. I have given her a note for a half a million dollars, payable a month after my death,” and asked her not to mention it to any one; that he had made Mrs. Herbert his companion in 1924; that he had become very dependent upon her; that he was old and ill and had to employ people to take care of him. The witness Adele Hope testified that Col. Lankershim told her that he had given Mrs. Herbert a note for a sum sufficient to take care of her the rest of her life and more besides; that she would have plenty for some of her pet charities. Other witnesses testified of the many services performed by Mrs. Herbert during a period of three years and ten months beginning in January, 1924. Without setting forth these services in detail, they can be classified in general terms as services as companion, nurse, and personal attendant. Other witnesses testified that Col. Lankershim had admitted and acknowledged to others that Mrs. Herbert was rendering the services, his appreciation and gratitude for the services and the great value he attached to them, as well as his intention to pay for them. Mrs. Herbert was of middle age; Col. Lankershim was a man of great wealth, advanced age, and in poor health.

To sustain their contention that there was no substantial evidence to support the implied finding of the jury, defendants rely mainly upon certain physical facts apparent upon the face of the instrument and the testimony of certain expert witnesses. They argue that some of the writing on the instrument was placed thereon after the signature and with different pen and ink and that the last cipher in the figure was added, thereby increasing the amount from $500.00 to $500,000. In the case of Koeberle v. Hotchkiss, 48 P.(2d) 104, 106, a case frequently referred to, this court clearly gave the reasons why it is inappropriate to set forth the evidence in detail in the opinions of the court: “We purposely refrain in this case as in other cases from setting forth the facts and circumstances upon which we rely for our decision that there is substantial evidence to sustain the findings of the trial court. Such a recital is not required by the constitutional mandate which directs that all decisions of this court shall be given in writing and the grounds of the decision shall be stated. To thresh through a reporter's transcript, and to then determine whether or not there is any substantial evidence, requires no more skill than to thresh through a transcript and determine on which side lies the greater weight of evidence. The threshing of evidence for either of these purposes is essentially the same task of finding and weighing evidence, requiring skill of the same kind and degree, and is primarily a task for the trial court. It required a somewhat lively imagination the first time an appellate court declared that the search for and the determination whether there was any evidence to support a finding was the determination of a question of law. Thereafter the doctrine of scintilla of evidence was rejected in California for the doctrine of substantial evidence. Estate of Baldwin, 162 Cal. 471, 123 P. 267, and cases cited. For a time there was a tendency to overlook the fiction that it was a question of law and not of fact. Thus in the Estate of Wikman, 148 Cal. 642, 84 P. 212, 214, we find the following language used: ‘This is a finding of fact and must be sustained if there is any reasonable amount of evidence supporting it.’ To the same effect see McCarthy v. McColgan, 99 Cal.App. 492, 278 P. 918. We are not approving this quotation. The word ‘reasonable’ ordinarily involves a question for a fact finder. We are attempting to point out how nearly this so-called ‘question of law’ approaches to being a question of fact. All of this is in line with the thesis of this paragraph that this court purposely refrains from setting out the facts and circumstances in evidence upon which it bases its statement that there is substantial evidence to support the implied findings of the jury. The defendants are entitled to this explanation because of the length and eloquence of their briefs.” In a concurring opinion, Presiding Justice Stephens adds this: “A short, concise opinion upon the law points presented by the facts, it seems, is very popular except, in some instances, with the lawyer whose case has thus been handled. If lawyers would carefully read the opinion in People v. Davis, 147 Cal. 346, 81 P. 718, and the Supreme Court's comment upon denying a hearing in Burke v. Maze, 10 Cal.App. 206, at page 211, 101 P. 438, 440, many pages in appellate briefs and petitions for rehearings and hearings before the Supreme Court would be saved, for the uselessness of pages of facts in opinions is therein plainlv indicated.”

In the case before us counsel have filed briefs containing 927 pages of printed matter, the larger part of which is devoted to a review of the evidence. The present case affords ample justification for the doctrine set forth in the case of Koeberle v. Hotchkiss, supra. Unquestionably, there is a conflict in the evidence, with substantial evidence to sustain the findings of the jury, and such being the case, the findings may not be disturbed on appeal.

The second contention of defendants, that the instrument was not supported by a good consideration for the reason that Col. Lankershim was on October 10, 1927, obligated to pay the reasonable value of plaintiff's services, cannot be upheld. It is well settled that in support of a verdict it must be presumed that the jury followed the instructions of the court and found the facts to be such as to sustain their verdict. 2 Cal.Jur. 510; Olcese v. Hardy, 40 Cal. App. 323, 180 P. 666. If there is substantial evidence of a valid consideration, it must be presumed that the verdict of the jury rested thereon. Section 1605 of the Civil Code provides: “Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.”

The record discloses that the following contentions of plaintiff must be sustained: “* * * Under the evidence and the implied finding of the jury, we have the existence of several types of present consideration as heretofore pointed out, viz: (1) A novation, whereby the existing obligation was extinguished and a new and different obligation substituted in lieu thereof. (2) An account stated whereby the theretofore unliquidated obligation was made fixed and certain. (3) The time for payment was extended. (4) The prior transactions of the parties were merged into the written contract which itself constitutes presumptive evidence of a consideration. (5) The unconditional obligation was altered into an agreement to pay which was made contingent upon the existence of a particular fund. (6) Plaintiff by the acceptance of the note waived the right of process by attachment, judgment lien, or execution.”

It is well settled that if an agreement rests upon a good or valid consideration the jury may not inquire into the adequacy of the consideration. In Rusconi v. California Fruit Exchange, 100 Cal.App. 750, 281 P. 84, it is said: “When a good or valid consideration for an agreement exists, the law will not weigh the quantum thereof. Whelan v. Swain, 132 Cal. 389, 64 P. 560; Fairchild v. Cartwright, 39 Cal. App. 118, 121, 178 P. 333. In the absence of fraud, the inadequacy of consideration may not be considered as a means of upsetting a contract. 6 Cal.Jur. 189, § 128; Smith v. Bangham, 156 Cal. 359, 104 P. 689, 28 L.R.A.(N.S.) 522.” In the case at bar the only semblance of evidence on the subject of fraud touches the question of the alleged alteration of the instrument, and the defendants' contention in this regard has been resolved by the jury against them.

A case bearing similarity to the case before us is that of Sheldon v. Blackman, 188 Wis. 4, 205 N.W. 486, 489. In that case the action against the administrator, based upon a written instrument partly in the form of a promissory note, called for payment of $30,000 “at my death,” followed by a statement that the consideration of the note was for services rendered over a period of years. The administrator resisted the claim on the ground that “at best the deceased owed the claimant only the reasonable value of her services,” and that the instrument was testamentary in character, though not properly executed. The court rejected an offer of proof of the reasonable value of the services and in sustaining a judgment in plaintiff's favor said: “To hold that this agreement, deliberately made, should be set aside or impaired, would be a denial of the right of parties to make their own contracts. There is abundant authority for the rule that, when the value of services is indefinite or indeterminate, or largely a matter of opinion, the courts will not substitute their judgments for that of the contracting parties. [Citing authorities.] If the note was delivered to and accepted by the claimant (and as later appears, we hold that it was), she could not be heard to claim that more than the amount specified was due her, and we consider that the representatives of the deceased have no better right to question the adequacy of the consideration. It is our conclusion that parol evidence was inadmissible to show that the consideration was different from that agreed upon.”

In Yarwood v. Trusts & Guarantee Company, 94 App.Div. 47, 87 N.Y.S. 947, 949, a claim was presented against the estate of a decedent who had executed a note for $10,000 in favor of Jennie and George Crawford, the consideration being that a few days' services were performed by plaintiffs in the nature of nursing and making decedent comfortable while he was suffering from frozen feet and hands. A verdict was entered for plaintiffs which was sustained on appeal, the court saying: “It may be stated at once that, as claimed by appellant, simple gratitude, as a mere sentiment resting upon no material basis in the way of valuable benefits received, would not be a sufficient consideration for the enforcement of the obligation in suit. Upon the other hand, it is equally true that the sufficiency of valuable services as a legal and valid consideration for the obligation in question would not be destroyed or impaired by the fact that the obligor felt and declared a sense of gratitude which amounted to an appreciation of the services which had been performed for him, and which was not at all intended to supplant or exclude a recognition of a legal obligation to pay for the latter. * * * It is well settled that courts will not overturn an obligation of this kind because they may think that the promisor has paid too liberal a price for what he received. It is not necessary that the consideration of a note shall be equal in pecuniary value to the face of the obligation given. If no part of the consideration was wanting at the time, and no part of it subsequently failed, although inadequate in amount, the note is a valid obligation.”

Under the implied findings of the jury it must be held that Mrs. Herbert and Col. Lankershim, at the time of the execution of the instrument, agreed upon the manner and the amount of payment and that they reduced this agreement to writing. The execution and delivery of the instrument to plaintiff, together with her acceptance of it, brought about an extinguishment of the pre-existing obligation, whatever it may have been, which became merged in the debt created by the instrument. By accepting the instrument, plaintiff impliedly agreed to forbear the obligation until after the death of Col. Lankershim. It is well settled that forbearance alone may constitute a sufficient consideration.

There is ample authority for sustaining the verdict on the theory of an account stated. The rules concerning this subject are well collected in Gardner v. Watson, 170 Cal. 570, 150 P. 994, 995, where it is said: “‘It must appear (says this court in Baird v. Crank, 98 Cal. [293] 297, 33 P. [63] 65) that at the time of the accounting certain claims existed, of and concerning which an account was stated, that a balance was then struck and agreed upon, and that defendant expressly admitted that a certain sum was then due from him as a debt.’ To like effect is Coffee v. Williams, 103 Cal. [550] 556, 37 P. [504] 506, where it is said: ‘An account stated is a document–a writing–which exhibits the state of account between parties and the balance owing from one to the other; and when assented to, either expressly or impliedly, it becomes a new contract. An action upon it is not founded upon the original items, but upon the balance agreed to by the parties. And the general rule is that when the stated account is admitted, it can be avoided only by averment and proof of fraud, mistake,’ etc. The action upon an account stated is not upon the original dealings and transactions of the parties. Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement. Hendy v. March, 75 Cal. [566] 568, 17 P. 702. It is not at all necessary that there should be mutual or cross-accounts or demands between the parties. The acknowledgment of a debt, though it consists of but a single item, may form the basis of such a stated account. Weigel v. Hartman Steel Co., 51 N.J. Law [446] 450, 20 A. 67; Neyland v. Neyland, 19 Tex. [423] 427; Rutledge & Farrar v. Moore, 9 Mo. 537. * * * Moreover, the writing constituting an account stated need not aver, or at all contain, the grounds and reasons for the conclusion and declaration expressed. It is a complete account stated if it contains a signed and written acknowledgment of a present, unqualified indebtedness or liability with a promise to pay a named sum. * * * And Chitty (Chitty on Con. [11th Ed.] p. 962) declares that: ‘It must appear that at the time of the accounting, certain claims existed, of and concerning which an account was stated, that a balance was then struck and agreed upon, and that the defendant expressly admitted that a certain sum was then due from him as a debt.’ Moreover, it is well settled that the compromise of a claim or demand, even of a claim or demand of doubtful validity or value, is a good consideration for an account stated, and the defendant will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust or invalid. * * * It is open to a defendant, as has been pointed out, to repel the legal effect of the account stated by pleading and proof of its procurement through fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument. But it is not open to a defendant to attempt to defeat the legal effect of such a contract by showing a lack of consideration in any other way. Thus, it is not open to a defendant in such a case merely to show that the account stated was based upon a disputed claim of the plaintiff's, which claim subsequently proved to be invalid. Nor would it be open to a defendant to show that the amount justly due was very much less than the amount named in the account stated. All such evidence going to total or partial lack of consideration is forever debarred by the convention and agreement of the parties, for this is of the very essence of an account stated.”

In the case before us there is substantial evidence to sustain the implied finding of the jury that plaintiff had an unliquidated claim against Col. Lankershim and that on October 10, 1927, the amount mentioned in the note and the terms stated therein were mutually agreed upon.

Complaint is made of the ruling of the trial court refusing the proffered evidence of alleged experts on the subject of the reasonable value of the services rendered by Mrs. Herbert. These services were such as are within the common knowledge of the citizenry. In addition to the labor actually performed, the services involved kindness, patience, loyalty, and devotion to duty. Plaintiff's counsel frankly admits that the sum allowed by the jury is greater than would ordinarily be paid for the labor performed if the circumstances were such that the employer went into the open market to secure labor at the average wage. At the same time counsel points out that the sum of $500, the amount claimed by defendants to be specified in the instrument, is ridiculously low. The circumstances of this case are far from ordinary. The employment of some one by an aged, wealthy man, in a weakened physical condition, to perform the type of services rendered by plaintiff is exceedingly rare, if indeed a parallel case can be found. It would be presumptuous for any witness to claim to be an expert in a situation such as the one before us. It is the theory of the defendants that the evidence of the value of the services should be received to enable the jury to pass upon the likelihood that the instrument in question was for the full sum of $500,000, as claimed by plaintiff, or for the sum of $500, as claimed by defendants. All of the facts of the services, their nature and extent, were before the jury and they were in a position to determine the value of the services in so far as it bears upon the point just mentioned, and could do so from their own judgment and knowledge on the subject. Expert testimony was not necessary. Nylund v. Madsen, 94 Cal.App. 441, 271 P. 374, and cases there cited. The admissibility of expert testimony, as well as the qualifications of the witness, rests very largely within the discretion of the court. No abuse of discretion is shown here. Hastings v. The Steamer Uncle Sam, 10 Cal. 341; Rudat v. Carithers, 137 Cal.App. 92, 30 P.(2d) 435; Hutter v. Hommel, 213 Cal. 677, 3 P.(2d) 554.

Complaint is also made of the failure of the trial court to give certain instructions on the subject of the consideration. The foregoing discussion is to some extent applicable to defendants' contention on this point. Defendants particularly complain that the court erred in failing to specifically instruct the jury that plaintiff could recover, if at all, no more than the reasonable value of her services, and that the court erred in failing to specifically instruct the jury that if the instrument was intended in part as a gift or in part as a testamentary disposition it was to that extent unenforceable. The court did in fact instruct the jury fully and properly on all the points involved. The jury was given instructions, among others, that they should determine whether the sum promised was intended and agreed to be in payment for services or was intended as a gift or as a testamentary disposition; that the verdict must be for defendants if the instrument was intended as a gift or if it was intended as a testamentary disposition; that the jury should determine if the instrument was given for a valuable consideration; that if a material alteration was made in the instrument without the consent of Col. Lankershim the verdict should be for the defendants. The jury was also given the following instruction at the request of defendants: “If you find that the document herein sued upon was actually delivered by J. B. Lankershim to the plaintiff, it is for you to determine, under the issues here presented, whether that document was delivered by said Lankershim in payment for services said to have been rendered to him by plaintiff from January 4th, 1924, to October 10th, 1927, or whether it was delivered to her as a gift, or whether it was delivered as a testamentary disposition, and in determining such questions you may consider what services it has been here proved that plaintiff performed for said Lankershim between the said dates; whether those services were of the class and were performed under conditions for which an express agreement or an implied promise on the part of said Lankershim to pay for them was made, or whether such services were of such character and so performed that no intent of payment therefor existed in the minds of either of the parties. In considering these questions you may take into consideration the nature and extent of the alleged services as proved, and the amount of $500,000.00 expressed in said document, in reaching a conclusion as to whether the document for and promise to pay that amount was given in payment for services here proved to have been rendered by plaintiff to said Lankershim, or was given by him as a gift, or was given by him by way of testamentary disposition. All other facts and circumstances shown by the testimony may be considered by you in this connection.”

Defendants were not entitled to instructions on the points involved more favorable than those actually given. The issue of partial invalidity of the consideration, if indeed it could be considered as a proper issue, was not presented by any of the defenses pleaded. The court could not properly instruct the jury that they could apportion the contract or pass upon the adequacy of a valid consideration.

In the third of defendants' contentions above set forth they complain of the rulings of the trial court excluding certain statements made by Mrs. Herbert which included remarks disparaging to Col. Lankershim. Some of these remarks were shown to have been made after the date of the instrument and it was not affirmatively shown that any of the remarks were made before the date of the instrument. The remarks were not material to any of the issues presented by the pleadings. At best they could only show the mental attitude and frame of mind of the plaintiff at the time they were spoken. They do not come within the classification of admissions against interest.

In their fourth contention defendants complain of certain rulings of the trial court in which it is claimed that the expert witnesses were unduly limited in their testimony. The record discloses that the experts testified at great length, fully discussed the facts and fully presented to the jury the reasons for their opinions. The defendants were not prejudiced by any of the numerous rulings of the court on this subject.

In their final contention the defendants seek to show that the trial court was guilty of misconduct in certain comments made in the jury's presence. Late in the trial the court, upon motion of plaintiff, appointed an expert of the court's selection to give his opinion on certain issues. In making this appointment the court made extended remarks in the presence of the jury explaining this action, stating, among other things: “I have determined to grant the motion of the plaintiff for a chemical analysis of this document, although I realize that that ruling at this time interferes with the orderly conduct of the case. My principal reason for the granting it is that it is an examination of a different kind and type than has been made before, but I particularly want to impress upon you that from the granting of this motion you are not to infer that I have any belief in the sufficiency or insufficiency of the testimony of Dr. Bendikson. That is an examination of a kind which was described to you and the weight and sufficiency of his testimony and of his examination is a matter for you to determine * * * and I feel that it is necessary and wise for the jury to have all of the evidence which can possibly be had which bears upon the subject, particularly from an unprejudiced source.” We do not consider it appropriate to here set out in full the lengthy statement of the court. We find nothing prejudicial to the rights of defendants in the court's remarks. Counsel for defendants made no objection at the time and did not request the court to instruct the jury to disregard the statement or any part of it. At a later session, in the absence of the jury, counsel called the court's attention to the remarks which they considered prejudicial and the court then stated: “Well, I will be glad to make some comment on that, but I do not see that the remarks could be construed the way you seem to think. I was not contrasting or intending to contrast the witnesses produced by one side with the other against the testimony of the expert appointed by the court.” No further reference to the matter appears in the record. In the general instructions the court stated to the jury: “I have not expressed nor intended to express, nor have I intimated or intended to intimate any opinion as to what witnesses are or are not worthy of credence, what facts are or are not worthy of credence, what facts are or are not established or what inferences are to be drawn from the evidence adduced. If any expression of mine has seemed to indicate an opinion relating to any of these matters such expression must be entirely disregarded by you.” Even if it be conceded that defendants are in a position to present the point now, it is manifest that they have suffered no prejudice by the action of the court.

The foregoing disposes of the main contentions of the defendants and of all of the contentions which merit extended discussion. In the very extended briefs filed, a large number of points are argued, most of which have been covered in this opinion. Of the contentions of defendants not herein specifically disposed of, it is sufficient to say that they are without merit. The court will, as in this case, devote all the time necessary for the proper treatment of every case before it, no more and no less, whether the action involves the usual and ordinary petition of a poor man for his wages or the unusual and extraordinary expenditures of a man of great wealth.

The judgment and order appealed from are affirmed.

WOOD, Justice.

We concur: CRAIL, P. J.; GOULD, Justice pro tem.