HOUSER, J., Dissenting.
I dissent. The pivotal question presented is whether the provision in the contract that was entered into by the parties thereto, that the person who drilled the well would “bring the well in and leave it clean and ready for the pump”, was of such a nature that the introduction of evidence to determine the intention of the parties with reference to the use of such expression would be in contravention of the general rule which forbids the alteration or modification by parol evidence of a written contract. (See. 1856, Code Civ. Proc.; sec. 1625, Civ. Code.)
As a pointed suggestion that the language employed by the parties to the contract was not entirely clear, at an early stage on the trial of the action the remark made by the judge of the trial court with reference thereto is indicative. He said:
[485]
“The Court: Of course there might he an ambiguity there to the ordinary person as to the meaning of leaving it absolutely clean and ready for the pump. Now, I myself don’t know what that means. What does it mean? I don’t know.
“Mr. Elliott (Attorney for Plaintiff) : Well, perhaps the evidence would make it clear what it does mean.
“The Court: Then parol evidence would be admissible, if my theory is correct on that. ...”
But even assuming that the language in question in itself was free from ambiguity, nevertheless if it appear that it was used or understood with a “peculiar signification”, the agreement entered into by the interested parties thereto “must be construed accordingly”. Section 1861 of the Code of Civil Procedure provides as follows: “The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise
peculiar
signification, and were
so used and understood
in the particular instance,
in which case the agreement must he construed
accordingly.”
It should be clear that in entering into a written agreement, the parties thereto are under no legal obligation to attach either any particular, or generally accepted significance to any part thereof; but that to the contrary, the parties are privileged to attach such meaning either to a word, a phrase, or any clause or provision in their agreement, as they may agree upon. In other words, in their convention, the parties to any agreement may either adopt, or decline to adopt, either the dictionary meaning, or the generally accepted meaning, of any word which they may use in defining their several rights, duties, or obligations; and in a construction of the terms of an agreement, if it appear that in “the terms of a writing” the parties thereto have departed from the “primary and general acceptation” of words therein used by them, and have given them “peculiar signification”, the statute is plain in its declaration that in thus construing the agreement evidence is admissible to show the meaning which the parties themselves attributed to the word so used by them. In 6 California Jurisprudence, page 285, it is said:
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“Parties have power to define the words which they use, and their definitions may not he attacked on the ground that they are repugnant to the words defined. If the agreed definitions are free from ambiguity, then the only rule necessary to be invoked is the one requiring contracts to be enforced according to the intention of the parties who made them. ...”
The point is made particularly clear by the language used by the court in the opinion in the case of
Morrison
v.
Wilson,
30 Cal. 344, 348. In part it was there said:
“The question then comes to this, have the parties to a written contract the right to set aside the general sense of the words which they use, and for the purposes of the contract to assign to them another and different meaning by convention? That they have both the right and the power to do this there can be no question. The meaning of language depends upon usage and varies with it. If parties should insert a clause in their contract to the effect that the language used by them should be taken in a ceix tain sense which had become provincial, or in the meaning borne by it in a particular trade, and particularly if they should proceed to state the agreed definition in detail, and the definition turned out to be clear and unambiguous, the general meaning would have to give way; and it follows that it must be considered that parties have the power to innovate upon the general meaning of words at large free from all legal restrictions. If they see fit to agree that mile shall stand for league, or grant, bargain and sell for quitclaim, or even black for white, however we might marvel at the caprice, we could not question the power.”
In
Higgins
v.
California Petroleum etc. Co.,
120 Cal. 629 [52 Pac. 1080], one of the questions involved was what meaning was intended by the expression “gross ton” which the parties had used in their agreement. In passing upon the matter, the court said:
“The contention of appellant is, that the statute defines the meaning and use of the word ‘ton’ (Pol. Code, sec. 3222), and that the lease is unambiguous and cannot be explained or contradicted by parol evidence; therefore, there could have been no evidence at the trial justifying the finding of the court that the phrase ‘gross ton’ used in the lease meant a long ton of ‘two thousand two hundred
[487]
and forty pounds. ’ ... I think the question is entirely settled by section 1861 of the Code of Civil Procedure, which reads as follows: ‘The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. ’ I know no reason why this rule would not apply as well to a term indicating a statutory weight or measure as to any other term used in a writing. . . .
“Of course, appellant would contend that even under section 1861 such evidence cannot be received unless the contract expressly indicates a local, technical, or peculiar signification. But the section plainly provides that it may be shown by evidence that the language is used in a technical, local, or peculiar sense, and not merely that evidence may be introduced to show what such meaning is, when language is so used.
“This view is somewhat strengthened by the fact, as shown in respondents’ brief, that the phrase ‘gross ton’ is often used in lieu of the phrase ‘long ton’ with which we are all familiar in commercial reports, and which always indicates a ton containing two thousand two hundred and forty pounds.”
It was held that parol evidence was admissible to show that by the use of the term “gross ton” the parties to the contract had intended a long ton of 2,240 pounds, and not the statutory ton of 2,000 pounds.
In the case of
Shean
v. Weeks, 176 Cal. 592 [169 Pac. 231], the court was called upon to determine what was meant by the expression “general confeetionist”. In the course of the opinion the court said: “The ordinary meaning of words cannot be changed except by proof of general usage by those engaged in the particular trade,
or by proof that the parties to the contract used them in the special sense contended for.”
In
Anderson
v.
Willson,
48 Cal. App. 289 [191 Pac. 1016], the controversy centered upon the meaning that properly should attach to the expression “right of way for a canal”. It was held (syllabus) that it was “purely a question of intention; and the sense in which the words are
[488]
employed by the contracting parties in any given case will depend upon their intention as disclosed by the language of their contract, aided, when proper, by reference to the attendant circumstances ’ ’.
As stated in the prevailing opinion herein, by the answer to the complaint defendant pleaded that the questioned provision of the agreement was “thoroughly understood and agreed by the parties thereto” to have a specified meaning or significance. To my mind, he should have been given an opportunity to introduce evidence in that regard; and in that connection, in effect the jury should have been instructed that it was its province to determine what was the fact.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 27, 1934, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 29, 1934.