Ferrara v. Silver

WOOD (Fred B.), J.

The plaintiffs seek specific performance of a contract for the exchange of real property or damages if specific performance cannot be granted.

Nonsuit was granted both as to specific performance and as to damages because of “indefiniteness and lack of completeness in the contract,” particularly the indefiniteness of a commitment by the plaintiffs to construct “a banquet room building on westerly portion of Geary Boulevard lot,” which lot plaintiffs were to convey to defendant as a part of the exchange.

It appears that there was upon this lot a building used by the plaintiffs as a restaurant. They planned to continue to use it for that purpose as lessees of defendant after consummation of the exchange. An unoccupied portion of this lot, about 31 feet by 115 feet, was intended as the site for the proposed “banquet room building,” which plaintiffs as such lessees were to use in conjunction with the restaurant.

We are concerned not only with the parol evidence rule but also with the statute of frauds. The agreement to construct a banquet room building was an integral and material part of an “agreement for the leasing for a longer period than one year” and “for the sale of real property,” a contract which is “invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent.” (Civ. Code, § 1624.)

Obviously, the expression “banquet room building” is too vague to furnish the basis for a contractual duty unless it can be adequately aided by extrinsic evidence.

The evidentiary consequences of the parol evidence rule and the statute of frauds were clearly and cogently defined and declared by Presiding Justice Shinn in

Ellis

v.

Klaff,

96 Cal.App.2d 471, 475-478 [216 P.2d 15], and need not be repeated here at length. The gist of the matter is that neither the statute nor the rule permits the writing to

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be varied by parol but each allows extrinsic evidence “to identify the subject matter of the contract from the written description, explain the meaning of ambiguous, abstruse, or technical expressions, and assist in interpreting the expressed intentions of the parties in the light of circumstances existing at the time of execution.” (P. 476.) The rule does not preclude “proof of contemporeous oral agreements collateral to, and not inconsistent with, a written contract where the latter is either incomplete or silent on the subject, and the circumstances justify an inference that it was not intended to constitute a final inclusive statement of the transaction.” (P. 476.) The statute “demands that every material term of an agreement within its provisions be reduced to written form, whether the parties desire to do so or not. To be sufficient, the required writing must be one ‘which states