Armstrong v. Kline

This is an action to recover the reasonable value of services rendered, and to recover possession of an automobile and two automobile-ownership certificates. In a jury trial, plaintiff obtained a judgment for $7,500 for services rendered and a judgment that she have and recover the automobile and the certificates. Defendant appealed from both judgments.

Although an appeal was taken from the judgment that plaintiff have and recover the automobile and the certificates, no contention is made in appellant’s briefs or in her oral argument that said judgment should be reversed.

Appellant asserts on appeal that the trial court erred prejudicially in refusing to receive certain evidence offered by appellant, and that “the verdict and judgment are contrary

Andrew W. Flick was the owner of a lot, store building and liquor store at 8508 South Compton Avenue in Los Angeles, and he lived in the rear of the store. He died on March 31, 1941. Plaintiff duly served and filed, in the probate proceedings in the matter of his estate, her claim as a creditor of said deceased, which claim was in substance as follows: That said deceased “about July 3, 1936, orally agreed to give, devise and bequeath to Gladys R. Armstrong [plaintiff] ... in his Last Will, his lot, building and liquor store business . . . located at 8508 South Compton Avenue, Los Angeles, California, as stated by deceased of the value of the sum of' $9500.00 . . . amply provide for claimant [plaintiff] in said Last Will of deceased, and assist claimant in opening, conducting and operating her dress shop business to be located at 8510 S. Compton Avenue, Los Angeles ... in consideration of claimant moving her residence to and opening, conducting and operating her said dress shop business at said location of dress shop business, of assisting deceased in operating his said premises and liquor business, acting as his housekeeper and occasionally going out with deceased to his friends’ homes. That on about April 15, 1937, deceased opened his real estate office and business at 8506 S. Compton Avenue, Los Angeles . . . and at the request of deceased and as additional consideration for and as part of said agreement, claimant assisted deceased in the conducting and operating of said real estate business to about July 15, 1939. On about May 8, 1939, at the request of and with the consent of deceased, claimant opened and continued to operate her cleaning shop business ... to March 31, 1941. In consideration of said agreement claimant on about July '3, 1936, moved her said residence to said premises and on about July 15, 1936, opened and continued to operate her said dress shop business at said location . . . assisted deceased in operating said premises and liquor business and acted as housekeeper for deceased in said premises and liquor business daily from about 6 o’clock a.m. to about 10 o’clock p.m., and occasionally went out with deceased to deceased’s friends’ homes, from said about July 3, 1936, to March 31, 1941, and continues to operate said dress shop business and cleaning shop

Said creditor’s claim stated further: “That deceased failed to give, devise and bequeath to claimant in his Last Will, said premises and liquor business and amply provide for claimant thereon and failed and refused to carry out and perform the provisions of said agreement on his part to be performed; that claimant has performed all the provisions of said agreement on her part to be performed.” The claim also included statements that said administratrix (defendant) was withholding from, and refusing to deliver to, plaintiff two certificates of title to two certain described automobiles, which automobiles were purchased by claimant from her personal funds and were owned by claimant; that one of the automobiles was in the possession of claimant at the time of making the claim; and that the reasonable value of the certificates and automobiles was $150.

The first amended complaint, upon which the action was tried, included allegations which were in substance the same as the statements in said creditor’s claim.

The answer of defendant admitted that Flick did not make a will and that he did not give, devise, or bequeath anything to plaintiff.

The evidence was sufficient to support findings that the statements in said creditor’s claim as to the making of the agreement, the fulfillment of the terms thereof by plaintiff, and the failure of Flick to perform his part of the agreement, were true.

The real estate office, the liquor store, the dress shop, and the cleaning shop were located at 8506, 8508, 8510 and 8512 South Compton Avenue, respectively. The dress shop adjoined the south side of the liquor store, and the cleaning shop adjoined the south side of the dress shop. Doorways were cut through the dividing walls of those places. The real estate office was immediately north of the liquor store, but did not adjoin it. The four places were connected by a buzzer system so that when the front door of any of those places was opened a buzzer would sound in the other places. The living quarters at the rear of the liquor store consisted of a living room, bedroom, breakfast room, kitchen and furniture. At the rear of the living quarters Flick had a garage, a garden and places where he, at times, kept rabbits and chickens.

The testimony of plaintiff concerning the automobile and the two certificates of ownership was in substance that plaintiff purchased the two automobiles referred to in the certificates with her own money; that the certificates were issued in her name as owner; that she endorsed them and placed them in decedent’s safe deposit box for safekeeping; that defendant locked the garage at the rear of the liquor store where one of the automobiles was kept and refused to permit plaintiff to have possession of that automobile; and that the other automobile was in the garage at the rear of plaintiff’s dress shop and plaintiff had possession of that automobile.

Defendant asked one of plaintiff’s witnesses on cross-examination: “Did you know that in 1936, in July of 1936, Gladys [plaintiff] was receiving relief from one of the relief agencies?” Plaintiff’s objection thereto upon the grounds that it called for a conclusion of the witness and was not proper cross-examination was sustained. Defendant thereupon asked the witness: “Did Gladys tell you at any time whether she was receiving relief from one of the relief agencies?” Plaintiff’s objection thereto upon the ground that it was not impeachment and not proper cross-examination was sustained. Defendant’s argument, in support of her contention that

As to the second question, an answer thereto in the affirmative would have been evidence of an admission by plaintiff that she had received relief from a relief agency, and such an admission would have been material evidence for the purpose stated in defendant’s argument above mentioned. There was no offer of proof, however, that the answer would be in the affirmative and there was no offer to prove that plaintiff did receive relief in July, 1936, or at all. It was not prejudicial error to sustain the objection to that question.

Defendant contends further that the court erred in refusing to receive in evidence thirteen checks, totaling $111.58, which were drawn by Andrew W. Flick, and were payable to G. R. Armstrong. A witness called by defendant testified that six of said checks, totaling $38.50, were received by him, a manufacturer of laundry equipment, in payment of amounts due to him as monthly installments under a written contract whereby plaintiff agreed to purchase from him certain electric equipment which had been installed in her cleaning shop. There was no testimony that plaintiff endorsed any of those checks. Defendant offered the six checks in evidence. Plaintiff objected to said offer upon the ground that there was no showing that plaintiff endorsed the checks or had anything to do with "them. The trial judge said: “Will you connect it up further later, Mr. Hubbard [counsel for defendant] ?’’ Counsel for defendant replied: “Yes, I think I can connect it up.” The trial judge then said: “All right. . . . You may offer them later. The objection is sustained at this time.” The only effort “to connect it up” later is referred to hereinafter. Said six cheeks were not offered in evidence later.

The only effort “to connect it [endorsements] up further later” or “to identify them [endorsements] further” was the calling of another witness by defendant and addressing questions to her concerning her qualifications to testify as to plaintiff’s signature. That effort is shown by the following excerpt from the transcript: “Q. By Mr. Hubbard: Have you seen Gladys Armstrong sign her name ? A. Yes. Q. Have you seen that on many occasions ? . . . A. No. I have seen her sign it. Q. How many times have you seen her sign her signature? A. There was two different occasions on which she signed three papers. Q. And from observing these signatures could you say you are able to identify her handwriting? Mr. Vallée: ... I object to that on the ground it is calling for a conclusion and opinion of the witness. Whether she can say or not is a matter for your Honor to say, whether she can or cannot. The Court: The objection is sustained. Q. By Mr. Hubbard: I will now ask you whether or not you can say the signatures on the back of these checks are the signatures of Gladys Armstrong? Mr. Vallée: Exactly the

The second group of checks, relating to the pressing machine and boiler, were offered in evidence later, and at that time counsel for defendant said: “While it is true I have not been able to prove the signature of Gladys Armstrong, the facts in the case show-” and “This group of checks it has been testified were given in payment of the boiler and the press that were located in this place, and charged to this shop, and I think that is sufficient identification to permit them to be introduced here in evidence. I don’t think it is necessary to show how the endorsement was placed on there or by whom. The check on its face shows it is a cheek of Andrew W. Flick.” It was not shown that plaintiff endorsed any of the checks; however, it was shown that' the checks drawn by Flick were received by persons to whom plaintiff was indebted for equipment in her cleaning shop and that plaintiff was given credit upon her indebtedness for the amounts of the checks. The testimony was that the amounts credited to plaintiff’s accounts were the amounts shown on the checks drawn by Flick, and that said amounts were so credited by reason of the receipt of said cheeks issued by Flick. Plaintiff obtained a benefit to the extent of the total amount of the checks, irrespective of whether or not she endorsed the checks. The account sheet showing the payments, by reason of the checks, as to the pressing machine and boiler were offered in evidence and no objection was made to that offer; however, no ruling was made as to the offer. The checks should have been received in evidence as part of the documentary evidence showing that plaintiff obtained a monetary benefit by reason of the issuance of said checks. Furthermore, the cheeks should have been received in evidence for the reason an exemplar of plaintiff’s signature was in evidence at the time the court sustained the objection (her signature on her creditor’s claim) which the jury could have used for purposes of comparison with the endorsements on the checks in considering whether plaintiff endorsed the

Appellant asserts, however, that the court instructed the jury “that they could not regard any of the testimony given relative to the checks and they must treat such testimony as if they had never heard the same.” The instruction given by the court, so referred to by appellant as an instruction embodying said assertion, was in part as follows: “You must not consider for any purpose any evidence offered and rejected, or which has been stricken out by the court; such evidence is to be treated as though you never had heard it.” The evidence that was offered and rejected was the checks. The evidence that plaintiff’s accounts for equipment in her shop were credited, by reason of the checks drawn by Flick,

Defendant also asserts that “we find the counsel for the respondent causing the Court to admonish the jury to disregard the very evidence that respondent now claims was and is before the jury [referring to the evidence that the checks were credited to plaintiff’s accounts].” Said assertion is based upon the following: “Mr. Hubbard: This group of checks it has been testified were given in payment of the boiler and the press . . . and I think that is sufficient identification to permit them to be introduced here in evidence. I don’t think it is necessary to show how the endorsement was placed on there or by whom. The cheek on its face shows it is a check of Andrew W. Flick. Mr. Vallée: Just a minute. I charge counsel again with probably inadvertently, though he is, doing something he shouldn’t do, telling what the evidence may be if it is introduced, to this jury. The Court: I will instruct the jury to disregard any statements made by counsel.” (After further discussion, all of which does not appear in the transcript, the court said, “I will sustain the objection.”) A statement of counsel made during a trial is not to be considered as evidence unless such statement is made as an admission or stipulation conceding the existence of a fact. The admonition of the court that the jury should disregard said statement of counsel for defendant was proper.

Defendant also contends that the court erred in refusing to receive evidence of an admission against interest made by plaintiff. The defendant was called as a witness by her counsel and was asked by her counsel whether the plaintiff had a conversation with her (defendant) relative to the filing of a claim by plaintiff against the estate of Flick. Defendant replied in the affirmative, and after other questions and answers concerning the time and place of, and the persons present at, the conversation, the following occurred: “Q. And what was said, if anything, at that time [September, 1941] by Mrs. Armstrong [plaintiff] in your presence? Mr. Vallée: Just a moment. I object to that on the ground there is no evidence of any compromise-The Court: I don’t know what it is. Mr. Vallée:-which is admissible in evidence. Mr. Hubbard: This is not any evidence of a compromise, as I understand. The Court: The objection is over

The last contention of defendant is that “a contract in favor of the plaintiff could not be implied or enforced because prohibited by law.” Her argument in support of that contention is: that “the ease was tried upon the theory of a long line of . decisions holding that where services have been performed and accepted the law will imply a contract

These points were not presented during the trial, but were first presented upon the motion for a new trial. Apparently it is defendant’s contention that if plaintiff was entitled to wages for her alleged services and if she failed to collect the wages each month, as provided in section 204 or section 205 of the Labor Code, she forfeited the wages. It is not necessary to consider further the contention of defendant based upon said sections of the Labor Code for the reason this action is not predicated upon an agreement to pay wages. The implied finding of the jury was that there was an agreement between Flick and plaintiff that if plaintiff would perform certain services for Flick that he would devise and

Plaintiff asserts that since defendant appealed from the-judgment that plaintiff have and recover the automobile and the two certificates and has not contended on appeal that said judgment should be reversed, a penalty for taking a frivolous appeal as to said judgment should be assessed. Although defendant did not contend that said judgment should be reversed, the points presented by defendant as to the judgment for the reasonable value of services rendered applied also to the judgment concerning the automobile and the certificates. A decision on appeal that there was prejudicial error in the rulings of the court as to the admissibility of evidence concerning the judgment for the reasonable value of services would have applied also to the other judgment. A penalty should not be assessed by reason of said appeal.

The judgments are affirmed.

Desmond, P. J., and Bishop, J., pro tem., concurred.

A, petition for a rehearing was denied June 30, 1944, and appellant’s petition for a hearing by the Supreme Court was denied August 3, 1944.