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District Court of Appeal, Second District, Division 4, California.

Ernest Austin FUQUA, as Executor of the Last Will and Testament of Mary Allen Fuqua, Deceased, Plaintiff and Respondent, v. A. Brigham ROSE and Zelleta M. Rose, Defendants and Appellants.

Decided: August 29, 1966

A. Brigham Rose, Los Angeles, for defendants and appellants. Wiener & Wiener and Albert C. Mour, Sherman Oaks, for plaintiff and respondent.

This is an appeal by defendants A. Brigham Rose and Zelleta M. Rose, his wife, from a judgment entered in favor of plaintiff Ernest Austin Fuqua as Executor of the Estate of his late wife, Mary Allen Fuqua.

The evidence for plaintiff showed the following:

Plaintiff Ernest Fuqua, then acting as guardian of the estate of his incompetent wife, filed suit against the present defendants and others (Fuqua v. Warner), demanding that they return or account for $75,000 worth of securities which it was alleged belonged to the ward and had come into the hands of defendant A. Brigham Rose as a successor trustee.   Defendant A. Brigham Rose, acting on behalf of himself and his wife, negotiated with counsel for the plaintiff in that action over a possible settlement.   They discussed the payment of certain sums as a down payment and further periodic payments during the life of the ward.   The figure of $200 a month was arrived at for such period payments and, by use of actuarial tables, the figure of $54,799.20 was arrived at as the then commuted value of such periodic payments.   Rose thereupon orally agreed with counsel for the plaintiff, acting on behalf of his client, that, in consideration of a dismissal with prejudice of the case of Fuqua v. Warner and a general release of the defendants thereon, the Roses would pay Mrs. Fuqua $1,000 forthwith, $3,133.54 on or before February 1, 1954, and $200 a month starting on December 13, 1950, and continuing thereafter so long as Mrs. Fuqua should live;  and that, in the event defendants should fall delinquent in any of the monthly payments, after 30 days, at the option of the plaintiffs, or their attorney, the sum of $54,799.20 should immediately by payable after crediting the $200 monthly payments previously made.

Defendants Rose executed a written contract of guaranty which recited the effect of the settlement agreement and, on December 8, 1950, the court made an order in the guardianship proceedings approving the settlement.   A notice of the entry of the court order approving the compromise was promptly served on defendants Rose.

Defendants made the first and second payments of $1,000 and $3,133.54, as provided and also made 90 payments of $200 per month, defaulting in June of 1958.   Notice of intention to accelerate the balance was duly given and, no payment being made, the present suit was begun.1

No request for the execution or filing of a dismissal in Fuqua v. Warner was made until June 26, 1963, and a request for entry of such dismissal was filed the next day.

Defendant A. Brigham Rose testified, denying the alleged contract and contending that the payments made by him (which he did not deny) were made voluntarily.

The trial court made findings of fact, accepting and adopting plaintiff's version, and entered judgment against defendants Rose for $28,099.20.2 together with interest in the amount of $10,133.36.

The brief filed on behalf of all appellants violates almost all of the rules on that subject.   We distill out of it that they desire to raise the following points:

(1) That the agreement violated the statute of frauds;

(2) That plaintiff had not performed the agreement, in that the dismissal in Fuqua v. Warner was not filed immediately;

(3) That the agreement involves a forfeiture;

(4) That the evidence does not support the findings;  and

(5) That the approval of the agreement by the guardianship court was not binding on defendants.

None of these contentions possesses the slightest merit.


 The oral contract before this court was not required to be in writing by the statute of frauds, because there was a possibility that this agreement could be performed within a year.   An oral agreement to support a person for the remainder of his life, or for some other indefinite period of time, must be regarded as having been made with a view to the possible death within a year of the party for whose benefit the agreement was made, and that agreement therefore does not come in the purview of the statute.  (See Gaskins v. Security–First National Bank (1939) 30 Cal.App.2d 409, 86 P.2d 681.)


 Defendant seems to be contending that plaintiffs did not file the dismissal of the “Fuqua v. Warner, et al.” action, at the proper time.   However, the evidence indicates that the first time defendant requested performance was on June 26, 1963, and the dismissal was on June 26, 1963, and the dismissal was filed shortly after, on June 27, 1963.   Where not time is specified for performance, a person who promises to do an act in the future and who has the ability to perform, does not violate his agreement unless and until a demand for performance is made and performance is refused, except in situations (not herein present) where the evidence shows that the delay has operated to the detriment of the promisee to such an extent as to make the delayed performance valueless and the promisor was charged with knowledge of these special circumstances.  (Publicists Local 818 etc. v. National Screen Service Corp. (1960) 183 Cal.App.2d 491, 498, 7 Cal.Rptr. 238; 3 World Sav. & Loan Ass'n. v. Kurtz Co. (1960) 183 Cal.App.2d 319, 6 Cal.Rptr. 665.)   Since defendants made no demand for the dismissal before June 1063, and since they show no prejudice from the delay, they have no complaint that Fuqua v. Warner was not dismissed at an earlier date.

[5] The agreement was, in no sense, one involving a forfeiture.   The parties had agreed on a sum to be paid which, computed to its then present value, would provide Mrs. Fuqua with the agreed upon amount per month.   Defendants had the privilege of paying this in installments, with the possibility that the payee would die before the full computed sum became due.   The express agreement whereby that privilege was to be lost, and the balance of the computed obligation would become payable, was an ordinary acceleration clause, calling for the payment of the exact sum by which the payee would be damaged by a default.   As such it was clearly valid.  (Aristocrat Highway Displays v. Stricklen (1945) 68 Cal.App.2d 788, 157 P.2d 880.)


 Defendant's fourth contention is that the evidence does not support the verdict.   It is the rule on appeal that all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.  (Bancroft–Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157;  Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.)   Since there was a conflict in the evidence as to whether there was an oral agreement to pay Mary Allen Fuqua $200 a month, and since the trial court found that there was such an agreement, we are bound by that finding on appeal, if there is substantial evidence to support the verdict.   Such substantial evidence exists and in fact, there is little evidence to support defendants' contention that no oral agreement took place other than Mr. Rose's contention to that effect.   And that assertion must be read together with the fact that defendants executed the guaranty document and did make the $200 payments to Mrs. Fuqua for a period of 90 months, and with the obvious inferences that may be drawn therefrom.


 The argument about the probate court's approval of the agreement misses the purpose of that action.   The agreement was between defendants and Mrs. Fuqua's guardian, looking to the compromise of a lawsuit on her behalf.   The guardian had no authority to make such a contract without approval of the court that appointed him.   The order herein involved constituted that approval and vested in the guardian the legal power to make the agreement effective.   That order was binding on everyone interested in the guardianship estate and made the agreement enforceable by the defendants against the guardian.   That is all that defendants needed from any court and all that they were entitled to.

 The present appeal is patently frivolous and must have been known to be such by the experienced attorney who prosecuted it;  it can have had no purpose other than for delay and harassment.

The purported appeal from the order denying a motion for new trial is dismissed;  the judgment is affirmed.   In addition to the normal costs on appeal, plaintiff shall recover the additional sum of $1,000 as a penalty for a frivolous appeal.


1.   The guardianship of Mrs. Fuqua was terminated, by a finding that she had been restored to competency, on October 15, 1954.   The present suit was filed by her and her husband.   During the pendency of this action, Mrs. Fuqua died and her husband was duly substituted as a party plaintiff in her stead.

2.   The ninety $200 payments had reduced the balance due to $36,799.20.   A further sum of $8,700 was credited by reason of the events set forth in the next paragraph, leaving a principal balance of $28,299.20.   The amount of the judgment is not herein questioned.A default judgement was entered against defendants and the sum of $8,700 was collected under that judgment.   Thereafter, that judgment was set aside (Rose v. Fuqua (1962) 200 Cal.App.2d 719, 19 Cal.Rptr. 634;  and see Fuqua v. Rose (1960) 180 Cal.App.2d 590, 4 Cal.RPtr. 573);  defendants answered and the trial which resulted in the judgment now before us took place.

3.   Disapproved and questioned, as to another issue, in Posner v. Grunwald–Marx, Inc. (1961) 56 Cal.2d 169, 183, 14 Cal.Rptr. 297, 363 P.2d 313, and in Swift–Chaplin Productions, Inc. v. Love (1963) 219 Cal.App.2d 110, 113, 32 Cal.Rptr. 758, 5 A.L.R.3d 1001.

KINGSLEY, Justice.

FILES, P.J., and JEFFERSON, J., concur.

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