Stufflebeem v. Arnold — 57 Cal. 11

Majority

p. 11

[No. 7,343.

Department Two.]

J. H. STUFFLEBEEM v. B. L. ARNOLD.

Headnote

Evidence—Consideration.—Oral evidence is admissible to show the true consideration upon which a written release is executed; such evidence does not tend to alter the terms of the release.

Appeal from a judgment for the plaintiff, and from an order denying a motion for a new trial, in the Tenth District Court, County of Colusa. Hatch, J.

After the decision, the appellant filed his petition that the cause be reheard in Bank, and the application was denied.

Action for money had and received; the defendant relied upon a written agreement of release, reciting a consideration of one dollar. The plaintiff offered to prove by oral evidence that the true consideration for the release was the return of certain personal property by the defendant, and that the defendant had failed to return it.

Naphtaly, Freiderich & Ackerman, and Goad, Albery & Goad, for Appellant.

Hart & Hart, for Respondent.

This action was brought to recover of defendant the sum of $835, for money had and received for plaintiff, and $426 for rent of a house for a term set forth in the complaint. The defendant" denied all indebtedness, and pleaded a release of the demands sued on. The cause was tried by the Court, and judgment passed for the plaintiffs. Defendant moved for a new trial, which was denied, and the defendant appealed from the judgment and order.

We have examined the transcript, and find no error. The evidence offered as to the consideration on which the release was executed by plaintiff was admissible. It did not tend to alter the terms of the release.

There was no findings of fact in the case. The evidence

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tended to sustain the decision of the Court. On the controverted points, there was some conflict in the evidence, but it was sufficient to sustain the decision.

Judgment and order affirmed.

Myrick, J., and Sharpsteih, J., concurred.