Himmelmann v. Sullivan , 40 Cal. 125 ( 1870 )

ErHODBS, C. J.,

delivered the opinion of the Court:

Tbe judgment was entered upon a verbal stipulation made in open Court, by wbieb it was agreed that tbe action in tbis case should abide tbe determination of tbe action of Himmelmann v. Steiner, in wbieb were involved tbe same questions of law and of facts as in tbis case, and that execution should be stayed until tbe final determination of that action in tbe Supreme Court. Tbe question to be determined is whether tbe portion of tbe stipulation staying execution can be enforced.

Tbe question is not tbe same as that which was presented in Borkheim v. North British, etc. (38 Cal. 623). There the question was whether a judgment which was entered upon a previous verbal stipulation could be maintained; but tbe question here is whether a party who has procured a judgment to be entered in bis favor, by means of one part of a verbal stipulation, is at liberty to repudiate tbe other part. Tbe answer is obvious. If be affirms tbe stipulation by accepting and acting upon one of its provisions, which was made for bis benefit, be must abide by tbe other provisions which were made for tbe benefit of the other party. Having received tbe benefit of the stipulation, be must bear tbe burdens which it imposes on him.

Order affirmed.

[Tbe following cases were affirmed on authority of Himmelmann v. Sullivan, No. 2,376: Himmelmann v. Goetjen, No. 2,377; Himmelmann v. King, No. 2,378; Himmelmann v. Johnson, No. 2,379.]