Cloyne v. Levy

This action grew out of the following facts: Thomas Cloyne agreed in writing to buy from M. L. Wolff a certain tract of land, at which time he paid one thousand dollars on account of the purchase price thereof. Upon Cloyne refusing to consummate the deal by paying the balance of $16,026.80, in accordance with the agreement, Wolff, on June 28,1907, tendered him a deed which Cloyne refused to accept.

Tire result of the trial was a judgment rendered on February 14,1908, in favor of Wolff for $16,912.05, bearing interest at the rate of seven per cent until paid. From this judgment ‘'Cloyne appealed to the supreme court. Defendant Levy had no interest in the litigation, but it appears that Cloyne had a large sum of money on deposit in his bank, and before taking said appeal Cloyne and Levy, who was the chief owner of the bank, made an agreement on February 29, 1908, which, after reciting that judgment had been rendered in said action in favor of Wolff, bearing “interest at the rate of seven per cent per annum from and after the 28th day of June, 1907,” and that Cloyne intended to appeal said case and had on deposit in the Bank of A. Levy, Inc., a sum of money exceeding the sum of eighteen thousand dollars, of which bank Levy was the principal stockholder and therefore to his interest to have said deposit remain in said bank pending the concluson of such litigation, provided: That Thomas Cloyne should leave a sum of money amounting to at least eighteen thousand dollars on deposit in said bank pending said appeal and until the final termination of the litigation, in consideration of which “the said A. Levy hereby agrees in consideration thereof that if the said Thomas Cloyne shall eventually be defeated in said litigation, that is to say, if judgment shall finally be rendered against said Cloyne in said matter, then and in such event the said A. Levy agrees to pay to said Thomas Cloyne an amount equal to the legal interest figured at seven per cent per annum on said judgment from June 28,1907, and which said Thomas Cloyne shall then be under legal obligation to pay.” It was further provided that if the case should be reversed or eventually decided in favor of Cloyne, Levy should not pay any interest on said deposit.

The judgment in the case of Wolff v. Cloyne, 156 Cal. 746 , [ 106 Pac. 104 ], was, on January 15, 1910, by the supreme court affirmed, and on February 17, 1910, Levy paid to Cloyne the sum of $2,313, which represented interest on said judgment rendered in Wolff v. Cloyne at the rate of seven per cent per annum for a period extending from. February 14, 1908, the date of the judgment, to the date of its affirmance on appeal.

Defendant in his answer admits the execution of the agreement as set out in the complaint, but, by both answer and cross-complaint, alleges that said written agreement does not express the true intent and meaning of the parties in making said agreement, which, as alleged, was that he, defendant Levy, should pay plaintiff such rate of interest from the date when said judgment was rendered, to wit: February 14, 1908, and not from June 28, 1907, which was the date when Wolff tendered the deed to Cloyne, but that in reducing their agreement to writing a mutual mistake was made in inserting the date June 28, 1907, as the time from which interest should run.

Upon these allegations defendant asked for a reformation of the agreement. It is also alleged in the answer that this mistake was discovered by both parties on or about February 17, 1910, at which time defendant paid to plaintiff the sum of $2,313, and that plaintiff accepted said sum in full satisfaction and discharge of any and all claims under and by virtue of said agreement.

It thus appears that defendant, while conceding that under the agreement as written plaintiff is entitled to recover the sum sued for, nevertheless insists not only that the amount paid under the circumstances shown constituted an accord and satisfaction, but also that under the evidence he was entitled to have the instrument reformed so as to express what he insists was the true intent and meaning of the parties. As to both these contentions the court found against defendant.

The obligation of defendant under the terms of the written agreement was to pay plaintiff interest on the judgment from June 28, 1907, to the date of its affirmance. This amounted to $3,067.38. On February 17, 1910, defendant paid Cloyne $2,313 toward the liquidation of said indebtedness. Appellant insists that such payment constituted an accord and satisfaction the effect of which was to discharge the obligation. If this payment of the lesser sum extinguished the obligation of defendant upon the agreement, it was (in the absence of an acceptance in writing, or made pursuant to the terms of a written instrument, Civil Code, section 1524), by virtue of a new agreement which in law is termed an accord and

Little is urged in support of the proposition that the evidence is insufficient to support the finding to the effect that

There is no merit in the contention that the agreement tended to encourage litigation, or was in the nature of a gambling contract and therefore void as against public policy. It was made upon a sufficient consideration, namely: that defendant was to have the use of the money for which he was to pay interest. The fact that in the contingency that the judgment should be reversed he was to pay no interest, could not affect the validity of the agreement.

The judgment and order are affirmed.

Conrey, P. J., and James, J., concurred.