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Styne v. Stevens2/8/2000
e's receiving commissions under the Act, but only presented an alternative way of viewing the value of Styne's services.
In addition, Stevens had the opportunity to respond to the statement in her own closing argument. She did so, pointing out that there was no evidence to support either the value assigned to Stevens's appearances or that Styne had given up commissions on those appearances, as opposed to commissions on concert and album revenues. Moreover, the jury was instructed that statements of counsel are not evidence. It was also instructed that the plaintiff contended that in exchange for the promise to pay him 10 percent of the profits of the business he gave up any commissions he would have received based upon "an album recording or personal appearance concerts." We conclude that Stevens has failed to show prejudicial error in connection with the trial court's allowing the closing argument.
b. Failure to instruct the jury on the doctrine of illusory consideration
Stevens challenged the enforceability of the alleged agreements based upon the lack of any cognizable consideration. The trial court instructed the jury on inadequate consideration and past consideration, but refused to instruct the jury on illegal consideration (Styne's violation of the Act) or illusory consideration. We conclude the trial court did not err in failing to read the proffered instruction.
The jury was instructed as follows: "Promises by of the parties bargained for and given in exchange for each other constitutes consideration. [ ] To be sufficient the consideration must have some value. Something that is completely worthless cannot constitute sufficient consideration. [ ] Acts or forbearance that were previously performed cannot be consideration for a new promise. As a result, a promise is not enforceable as a contract if said promise is based merely on past consideration."
The instructions given were sufficient. They adequately informed the jury that consideration must have some value. In addition, counsel for Stevens urged her position that Styne had given nothing of value as consideration during closing argument and pointed out the weaknesses in Styne's position regarding the existence of a trust agreement. In light of the state of the evidence, the effect of other instructions, the effect of counsel's arguments, and the lack of any indication by the jury that it was misled (see Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 580-581), Stevens has not shown prejudicial error.
DISPOSITION
The order appealed from is reversed. Costs to appellant.
CERTIFIED FOR PARTIAL PUBLICATION.
We concur:
BOREN
MALLANO
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