Lewis Publishing Co. v. Henderson

KNIGHT, J.

This is an appeal by plaintiff from an adverse judgment in an action to recover the sum of $565 on a rejected claim theretofore presented for allowance against the estate of Ellen M. Wetherbee, deceased.

The facts as they appear from the findings and the evidence supporting the findings are as follows: Mrs. Wetherbee subscribed for a set of books which plaintiff was about to publish, entitled “California and Californians,” the purchase price being $65. A few days later plaintiff’s representative stated to her that if she would agree to cancel said subscription and pay an additional $1,000 plaintiff would reproduce the portrait of herself and her deceased husband in said books from steel plates which would be entirely hand engraved and deliver to her a set of the books, the hand-engraved steel plates from which the portrait was to be reproduced and ten prints therefrom. Mrs. Wetherbee accepted the proposition and thereupon plaintiff’s representative prepared a memorandum of the agreement, which was addressed to plaintiff, signed by Mrs. Wether-bee, and provided among other things that one-half of the agreed

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price of $1,065 should be paid on submission of the proofs and the balance on delivery of the books, etc. Mrs. Wetherbee made the first payment of $500, as called for in the agreement, but before the publication of the books was completed she died. Thereafter the books were sent by express to her late residence, and defendants refused to accept or pay for the same for the reason, as the answer alleges and the evidence shows, that the portrait of Mrs. Wetherbee and her husband was not reproduced therein from steel plates entirely hand engraved, as plaintiff agreed it would be, but were executed on plates partly machine made and of a greatly inferior quality. The trial court concluded from the foregoing facts that plaintiff had not performed its contract; that there had been a failure of consideration, and that, consequently, plaintiff was not in a position to enforce the terms of the contract against the other party thereto.

The main contention made by plaintiff in support of the appeal is that the findings and judgment are erroneous in that they are founded upon evidence which is violative of the code provisions declaring in effect that a contract when reduced to writing supersedes all negotiations and stipulations concerning its matters which preceded or accompanied its execution (Civ. Code, sec. 1625; Code Civ. Proc., sec. 1856), and can be altered only by a contract in writing or by an oral executed agreement, but not otherwise. (Civil Code, sec. 1698.) This contention arises out of the following circumstances: In preparing the memorandum of agreement plaintiff’s representative omitted to specify therein, as agreed, that the steel plates to be used in the reproduction of said portrait were to be entirely hand engraved; but the answer alleged that such was the agreement and that plaintiff had failed to perform that part of it. Plaintiff did not demur to the answer, but at the trial treated the issue thus raised as the main one to be tried, and in response thereto offered as its first witness Mrs. Lottie Gonzales, who was present at all times during the negotiations between the parties, for the purpose of establishing what the oral agreement was between the parties as to the type of the steel plates, but she testified on direct examination, in response to questions propounded by counsel then representing plaintiff, that plaintiff agreed to furnish