Opinion
Department Two
Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial.
COUNSEL
Hunsaker, Britt & Goodrich, for Appellants.
Collier & Watson, and Works, Gibson & Titus, for Respondent.
JUDGES: Foote, C. Belcher, C., and Temple, C., concurred.
OPINION
FOOTE, Judge
This action in ejectment was brought by Mrs. L. F. Shirley, the mother of one Frank B. Shirley, deceased, against his widow and her tenant, H. M. Kutchin. An answer and cross-complaint was filed by the defendants, alleging a parol gift of the premises in controversy by the plaintiff to her son, Frank B. Shirley; that he was dead, and had left by will all his property to his said wife; that he had, before his death, complied with all the conditions of the parol gift and promise made by his mother, and asking for a specific performance thereof. The contentions thus raised were submitted to a jury upon special issues, all of which were found in favor of the defendant, Kate Shirley.
The court below declined to accept the advisory verdict of the jury, and rendered a decision upon the issues made directly contrary thereto, and judgment was entered accordingly. The appeal here is taken from that judgment, and from an order refusing a new trial.
The only real contentions here are, whether the court was guilty of an abuse of discretion in finding, as it did, upon the allegations of the cross-complaint, and in refusing to admit certain evidence.
In a contest of this kind, to establish and enforce a parol gift of land, "the evidence must be clear and definite, and if there is such a conflict of evidence as makes it uncertain what the material terms of the agreement were, the court will refuse to interfere." (Waterman on Specific Performance, sec. 291.)
The court below adhered to the belief, from the evidence, that no such parol gift as asserted to have been made, and of which specific performance was claimed in the cross-complaint, was intended, and there having been a conflict of evidence as to the matter, we cannot say that the legal discretion vested in that tribunal was abused.
Neither do we perceive any error in refusing to permit answers to the interrogatories propounded to the witness Morris, about a certain letter. It was written by the son of the plaintiff to his sister, and related to matters entirely foreign to those here involved, and even conceding that the alteration was made by the plaintiff, which is not made perfectly clear, [27 P. 1098] yet we do not see how it could affect the issues here made. Suppose the plaintiff did think that her son had put money into Silver Terrace property, instead of loaning it to her, and she had made this addition of the words above quoted in the letter, as expressing her dissent from what he had written, how could that have anything to do with the case here? Certainly it does not relate to her alleged promise and agreement, nor does it touch her credibility as a witness; and even if it had gone to her credibility, in view of all the other evidence in the case, we are unable to perceive that it could have affected the result.
The legal title to the property in dispute was, without question, in the plaintiff; there was certainly some evidence that the party under whom the defendant claimed was a tenant at will only, and that he was dead. We cannot say, therefore, that the court below erred in the course pursued.
For these reasons, we advise that the judgment and order be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.