Wright-Callender-Andrews Co. v. Eaton

SHAW, J.

In this action the trial court gave plaintiff judgment for services rendered in procuring a purchaser of certain real and personal property pursuant to the terms of a written contract executed by defendant, who appeals from the judgment.

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The property is described in the contract as “3828 Wilshire Boulevard (city of Los Angeles), being lot 20 West-. ern Wilshire Heights Tract. Property as is completely furnished except piano player, music, cuckoo clock, sewing machine and (picture) boat. Old silver, family pictures, pier glass and books.” Within the time fixed therefor in said contract, plaintiff, claiming to have acted in pursuance of authority conferred thereby, and representing to him that the personal property included an automobile owned by defendant, presented a party ready, able, and willing to purchase the property, if the automobile was included, at the price specified: Defendant refused to transfer the automobile, by reason of which fact the proposed sale was not consummated. The question is, whether the contract covered the automobile. The error of the court upon which appellant argues for a reversal, occurred in the trial of this issue, as to which the court found adversely to defendant.

No mention of the automobile is made in the contract. Nevertheless, counsel for respondent argue that, since the

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property was located in the “fashionable Wilshire residence district,” an automobile might very well be deemed a part of the furnishing of “property completely furnished.” With equal propriety, as said by counsel for appellant, they might insist that an aeroplane or pair of horses and carriage should be deemed a part thereof. We cannot believe the trial judge in making the findings was influenced in so doing by such argument; but that, deeming the case a proper one therefor, the court, over defendant’s objection, and not for the purpose of reforming the contract, permitted the introduction of parol testimony, upon which, since the contract by its terms did not include the automobile, it is clear the court based its decision. In so doing we think it erred. Section 1856 of the Code of Civil Procedure provides that, “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue by the pleadings.” As stated, no such question is in issue here. This section further provides that, in ascertaining the proper construction of an instrument, other evidence as to the circumstances under which it was made may be received for the purpose of placing the judge in the position of those whose language he is to interpret; and further provides that where the contract is of doubtful meaning, or it is necessary to explain an extrinsic ambiguity, other evidence may be received.