Richardson v. Davis

NOURSE, P. J.

Plaintiff sued upon a written contract for advertising. The cause was tried by the court without a jury and judgment went for plaintiff as prayed. The defendant appeals upon typewritten transcripts.

On February 20, 1928, the parties executed a contract in writing under which plaintiff agreed to run thirty feet of advertising film six days a week alternating weekly between the Southern Pacific and Key Route waiting-rooms in the Ferry Building at San Francisco for the term of fifty-two weeks. The defendant agreed to pay therefor the sum of $30 a week payable monthly after the first exhibit, which was to start March 1, 1928. The contract provided: “Films may be changed twice monthly.”

On February 21, 1928, defendant wrote to the plaintiff that the contract was canceled. On February 27th the parties entered into an oral contract under _ which plaintiff agreed to furnish the same advertising for a period of two years at $15 a week or $65 a month, films to be run three days a week instead of six. On April 26, 1928, defendant sent written notice to plaintiff that this contract was terminated as of May 1st following. Plaintiff continued to run

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the film for the full period of two years, carrying without change an advertisement of a special sale of automobiles conducted by - defendant at his places of business at 1521 and 690 Van Ness Avenue in San Francisco. This sale was advertised to commence March 1, 1928. The business at 690 Van Ness was discontinued in October of that year.

Plaintiff sued upon the written contract of February 20th, alleging however, that there became due under the contract $65 a month, whereas the contract provided for payments of $30 a week. Defendant answered admitting the execution of the contract pleaded, denying generally that any sum was due under it, and pleading specially that the contract was abandoned and rescinded by mutual consent.

During the trial plaintiff was forced to admit the abandonment of the written contract and then asked for and was granted leave to amend to conform to the proofs by pleading a new or modified contract in the terms of the oral agreement of February 27th. The defendant then proved the cancellation of this contract on April 26th in the manner above set forth. The complaint having been filed before the end of the two-year period, the trial court limited its findings to the fourteen months preceding May 1, 1929, and found that the plaintiff had performed all the terms of the contract as modified and gave judgment for plaintiff for $780 upon the conclusion of law that said sum was due “for services rendered under said contract”.