21 P.2d 703 | Cal. Ct. App. | 1933
This cause was tried upon the second amended complaint and the answer thereto. A number of questions have been presented, but we do not deem it necessary to discuss all of them in arriving at a determination of the case, owing to the view we have taken of the law applicable to the points herein discussed. Two causes of action are stated in the complaint. One based upon a constructive trust alleged to have accrued through the violation of an agreement entered into between plaintiff and one Edith M. Hendrickson, by which they mutually agreed to marry one another, and immediately thereafter to make each other the beneficiary of life insurance policies which each held on his or her life. It is alleged therein that the marriage was consummated; that plaintiff made his wife the beneficiary under the policies held on his life, but that his wife failed to name him as the beneficiary in the policy issued on her life, and that the two defendants are the named beneficiaries in the policy issued on her life; that upon the death of Edith M. Hendrickson Stevenson they collected the amount due on the policy, and now refuse to account for the same to this plaintiff. *403
It is also alleged that plaintiff believed the said promise of his intended wife, and relied thereon, and if said promise had not been made, he would not have entered into the marriage relation as aforesaid; that his said intended wife never intended to change the beneficiaries named in the policy held on her life.
The other cause of action is for money had and received. The answer of the defendants, in appropriate language, denied the existence of the alleged trust, or that any money was due from them, or either of them, to the plaintiff. The cause was tried by the court; each party offered evidence on the issues involved, and the court reserved a ruling as to its admissibility. Briefs were filed by the respective parties, and thereafter the court made the following order which was entered in the minutes of the court: "The objection heretofore made by the defendants to the introduction of evidence in the above entitled case is hereby sustained, and judgment is hereby ordered for the defendants." Thereafter, the court made its findings of fact, conclusions of law and judgment in conformity with said order, and the plaintiff has appealed from the judgment.
The record has been brought up under the alternative method. The objections made by the defendants, and sustained, went to all of the evidence offered by the plaintiff, and therefore the allegations of the complaint having been denied by the answer, were without evidentiary support, and no other judgment than the one entered was possible. It is not assigned or claimed that the complaint does not state facts sufficient to constitute a cause of action. [1] Although the agreement between the parties is not alleged to be in writing, it is a legal presumption that it is. (Freitas v. Freitas,
[2] The vital question to be determined is this: Conceding that the excluded evidence established an agreement, it is equally clear therefrom that the agreement was oral. Such being the case, was there, as claimed by the appellant, such a performance of its terms as would raise the bar of the statute of frauds? *404
One of the objections upon which the offered testimony was excluded was based upon subdivision 3 of section
The objection was also predicated on section 1973 of the Code of Civil Procedure, and subdivision 3 thereof, which is in substance the same as section
Do the foregoing facts constitute part performance sufficient to take the case out of the statute of frauds? If so, then the court erred in excluding the testimony; if not, then the order of exclusion was properly made, for there can be no question that the contract was one required to be in writing.
In Hughes v. Hughes,
In Peek v. Peek,
In Gould v. Mansfield,
In the case at bar the right to change the beneficiary named in the several insurance policies at all times rested in the insured, and as said in the case last cited, concerning the power to make a will, the right to change the will was ambulatory, and the same right exists to change the beneficiary in a policy of insurance, and not constitute a sufficient part performance to take the case out of the statute of frauds.
In Browne, Statute of Frauds, secs. 452-454, and Williams v.Morris,
In Henry v. Henry,
In Trout v. Ogilvie, supra, it is said: "To take a contract out of the operation of the statute of frauds, however, the acts relied upon must be unequivocally referable to the contract. Acts which, though in truth done in performance of *407 a contract, admit of an explanation without supposing a contract, are not, in general, such acts of part-performance as will take the case out of the operation of the statute. (36 Cyc. 645.) The acts relied upon must clearly appear to have been done in pursuance of the contract, and to result from the contract and not from some other relation." (See cases there cited.)
In Baker v. Bouchard,
In O'Brien v. O'Brien,
In the case before us, the change of the beneficiary by the plaintiff may be attributable to his character of husband, and nothing else. So far as the wife is concerned, she did no act toward performance.
In Luders v. Security Trust etc. Bank,
The case of Freitas v. Freitas,
From the foregoing review of the evidence offered by the plaintiff, it is clear that Edith M. Hendrickson did nothing that could be construed as an act of part performance of the oral antenuptial agreement; even the act of marriage did not constitute part performance. The only act performed by plaintiff which could be attributable to the said agreement was the change in the beneficiary in the policies of insurance issued on his life, and under the above-cited authorities, such act was insufficient to raise the bar of the statute. Such being the case, the ruling of the court sustaining the objections to the offered evidence was correct, because the agreement was not in writing and no facts were shown sufficient to support its enforcement as an executed oral agreement. The other questions raised, therefore, become immaterial.
The judgment is affirmed.
Thompson, J., and Plummer, Acting P.J., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 22, 1933. *409