Offeman v. Robertson-Cole Studios, Inc.

Appellant has filed a petition for a rehearing in which it is urged that a contract which is unenforceable, because within the statute of frauds, is not admissible in evidence in an action ofquantum meruit as tending to prove the reasonable value of services rendered. Reliance is placed on the provision of section 1973 of the Code of Civil Procedure, which is herein italicized as follows: "In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or his agent. Evidence,therefore, of the agreement, cannot be received without thewriting or secondary evidence of its contents: 1. An agreement that by its terms is not to be performed within a year from the making thereof. . . ." The heading of chapter VI, title II, part IV, in which section 1973 appears is "Indispensable Evidence." The first section in the chapter, 1967, provides: "The law makes certain evidence necessary to the validity of particular acts, or the proof of particular facts." Section 1968 provides that "perjury and treason must be proved by testimony of more than one witness." Section 1969 provides: "A last will and testament, *Page 17 except a nuncupative will, is invalid, unless it be in writing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given." The evident intent running through the provisions of chapter VI is to specify the "indispensable evidence" which is "necessary to the validity of particular acts, or the proof of particular facts" which are enumerated in that chapter, and not to make such provisions applicable to the proof of other acts or facts. The provision of section 1969, that when "such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given," is similar to the provision of section 1973 upon which appellant relies. An invalid will may be admitted in evidence as a declaration of a decedent in a suit by one named as beneficiary thereunder to recover for services rendered the decedent. (Estate of Rohrer, 160 Cal. 574, 576 [Ann. Cas. 1913A, 479, 117 P. 672]; Mayborne v. Citizens Trust Savings Bank, 46 Cal.App. 178, 187 [188 P. 1034].) "A written statement is none the less competent as an admission because it is contained in a document which is not itself effective for the purpose for which it was made, either by reason of illegality or incompetency of a party thereto." (22 C.J. 307.) If the terms of an ineffective written contract may be proved as admissions, no substantial reason appears for holding that the terms of an ineffective oral contract may not be so proved. In Elliott on Contracts, section 1213, it is said that courts differ as to the construction to be placed on the statute of frauds; that some "always insist on a literal interpretation and application of the statute, regardless of its manifest intent and purpose"; and that others construe the statute "so as to make it apply only in those cases which come within the intent of the statute." The California cases cited herein and those cited in the original opinion show that the courts of this state have adopted the latter rule. It clearly appears from the provisons of chapter VI as a whole, also from the provisions of section 1973 standing alone, that the language upon which appellant relies was not intended to exclude proof of admissions against the interest of a party upon the mere ground that such admissions constitute the terms of an unenforceable contract, *Page 18 but to exclude such proof when offered for the purpose of establishing the contract in an action to enforce the same. "When the contract is offered as evidence merely and not for the purpose of founding a claim, it may be received." (27 C.J. 379.) In this case proof of the oral contract was admissible, not for the purpose of founding a claim thereon but as constituting an admission by defendant as to the value of the services which plaintiff rendered. Such evidence, as stated, is not conclusive, as it would be if the contract were enforceable. In a case such as this the oral agreement is not the basis of the action, "but evidence of its terms is often necessary to establish the implied contract upon which recovery is sought." (Baldridge v.Centgraf, 82 Kan. 240 [108 P. 83]; Longhofer v. Herbel,83 Kan. 278 [111 P. 483].) To give section 1973 the meaning attributed to it by appellant would often prevent the establishment of such an implied contract. Appellant relies also on the case of Fuller v. Reed, 38 Cal. 99, wherein it is said: "Evidence of the value of the land stipulated to be conveyed by the express void agreement is inadmissible as a measure of the value of services rendered by plaintiff. . . . To permit such testimony for the purpose of establishing the reasonable value of services rendered by plaintiff, . . . would, in effect, allow a party in one breath to disaffirm a contract, and in the next to affirm and claim the benefit of the same contract as valid and subsisting, and substantially enable him to recover as for breach of a valid express contract in a simple action as assumpsit upon an implied contract." It appears throughout the opinion in that case that the court had in mind the question whether the stipulated compensation in the invalid contract was the measure of the value of the services rendered by the plaintiff rather than the admissibility of the terms of the contract as an admission or declaration of the defendant tending to show such value. That case was decided in 1869, prior to the enactment of section 1973 of the Code of Civil Procedure and section 1624 of the Civil Code. The statute then in force provided: "Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease of sale is to be made." (Stats. *Page 19 1850, p. 266.) The decision in Dreidlein v. Manger, 69 Mont. 155 [220 P. 1107], cited by appellant, is based upon the theory that a contract within the statute of frauds is absolutely void.Long v. Long, 162 Cal. 427 [122 P. 1077], merely holds that part performance of an oral contract does not take it out of the statute of frauds in so far as the contract remains executory. While unguarded dicta to the contrary may appear in some decisions, the courts of this state have uniformly held, since the decision in the case of In re Balfour Garette, 14 Cal.App. 261 [111 P. 615], that contracts within the statute of frauds are not void but unenforceable only. In that case Mr. Justice Hart says: "The original object of the statute was unquestionably to lay down in express terms certain rules by which, only, certain contracts, in themselves perfectly legal and valid, could be proved." The cases cited in the opinion heretofore filed herein show that the present rule in this state is in harmony with the original object of the statute as stated by Mr. Justice Hart. If the oral contract is valid, though unenforceable, no logical reason appears why an admission or declaration therein against interest may not be shown as tending to prove some issue in an action which is not upon contract between the parties to the contract. In discussing a somewhat similar question in Dupuy v. Macleod, 4 Cal. Unrep. 147, 150 [33 P. 1115, 1117], it is said: "A writing to satisfy the statute of frauds is one thing. A writing which is admissible in evidence as to some of the facts of a sale is, or may be, quite a different thing." If at any time the defendant had made an oral statement as to the value of plaintiff's services, it would have been admissible in evidence against the defendant. The fact that the oral statement was one of the terms of the unenforceable oral contract does not, on any logical grounds, render it less admissible.