US Credit Bureau, Inc. v. Powell

121 Cal.App.2d 870 (1953) 264 P.2d 229 UNITED STATES CREDIT BUREAU, INC., Respondent,

v.

ROBERT LEON POWELL, Appellant.

Docket No. 10. Court of Appeals of California, Appellate Department, Superior Court, Kern.

November 27, 1953. Deadrich, Gill & Bates, for Appellant.

Hayes, Bletz & Lawson for Respondent.

LAMBERT, P.J.

The plaintiff-respondent here brought suit on a written contract for the purchase price of a piano. The complaint alleged the execution of the contract by defendant and Jayne's Piano and Accordion Company, the assignment of the contract to the Bank of America and the reassignment by the Bank of America to Jayne's Piano and [871] Accordion Company and the assignment from Jayne's Piano and Accordion Company to the plaintiff. No demurrer to the answer was filed and no objection raised as to the pleadings by the plaintiff. The evidence presented to the trial court established without conflict that the written contract was signed by the defendant and that no payments had been made and that the contract was repurchased by Jayne's Piano and Accordion Company from the Bank of America and then assigned to plaintiff. Also the record shows that the piano was still in the possession of the defendant when the suit was filed, although he had offered to return it promptly to the plaintiff's assignor. Over the objection of the defendant, oral testimony was received that the contract had been assigned by written assignment to plaintiff, and the defendant's motion to strike said testimony was denied. After plaintiff had rested its case the defendant sought to introduce evidence to show a breach of implied warranty in support of the affirmative defense set forth in defendant's answer. The plaintiff objected to admission of this evidence and the court sustained the objection. Appellant relies on two grounds for reversal: First, that the assignment to the plaintiff-respondent here having been in writing, a written assignment should have been produced. The second contention is that it was prejudicial error for the court to exclude all the evidence relating to the proof of an implied warranty.

So far as the first assignment of error here is concerned, we do not consider it of any importance for there appears to be a written assignment, and it could be filed in this court, and that would dispose of the case. [1] However, we have concluded that the refusal to hear any evidence in an attempt to prove a breach of an implied warranty was prejudicial error. The contract upon which suit was brought provided, among other things, "This contract constitutes the entire agreement, no waivers or modifications shall be valid unless written upon or attached hereto." While this provision would exclude any parol evidence to change the contract in this case or prove an express warranty, we are of an opinion that it would not exclude an implied warranty, assuming that the plaintiff could prove facts sufficient to show an implied warranty, because section 1735 of the Civil Code provides for an implied warranty under certain conditions, and, the statutory provision is a part of every contract, and unless there is something in the contract specifically excluding the provisions of the statute, it remains a part of the contract. While