Ribiero v. Dotson

DRAPER, J.

Defendant appeals from judgment for plaintiff in this action for damages for breach of contract. The case was tried to the court sitting without a jury.

On March 19, 1958, plaintiff agreed to buy defendant’s bar business. The printed deposit receipt form which constituted the contract was filled in to provide for sale of “Lease, Fixtures, Glassware, Goodwill, on sale General Liquor License, and any other furniture, etc. in the place of business known as ‘Dotson’s.’ ” As required by the agreement, plaintiff deposited in escrow $5,000 on account of total purchase price of $13,500. In mid-April, defendant refused to complete the sale. This action was filed May 15, 1958, and resulted in judgment for plaintiff for $2,500 general damages and for $216.36 special damages.

The answer alleged that the parties had orally agreed that the deposit receipt would not be effective unless defendant

[821]

were able to obtain consent of his lessor to assignment of the lease to plaintiff. Since the lessor refused to consent, the defense was that the agreement never became effective.

In support of this contention, defendant was allowed full opportunity to present to the trial court extended evidence of the facts, conversations and circumstances attending negotiation for and execution of the agreement of sale. However, in cross-examination of plaintiff, defense counsel asked: “Would you have taken the place without a lease?” “Would you have wanted to purchase this place if you couldn’t get a lease?” and “When you signed this agreement, what was your understanding concerning the lease?” Objections were sustained. Defendant contends that exclusion of this evidence was error. We cannot agree.

Under some circumstances, an oral condition precedent to taking effect of a contract may be shown, if not inconsistent with the provisions of the written agreement

{Fontana,

v.

Upp,

128 Cal.App.2d 205 [275 P.2d 164] ;

Unger