Gladding, McBean & Co. v. Montgomery

HALL, J.

This is an appeal taken in accordance with the method provided by section 953a of the Code of Civil Procedure, from a judgment in favor of plaintiff for the sum of $825, for work and material performed and supplied by plaintiff in the construction of a tile roof for defendant.

The original contract was for the sum of $790, but this amount was increased by extra work by the amount of thirty-five dollars, making the total contract price $825, for which amount judgment was rendered.

The agreement was in writing, executed by defendant and by the plaintiff, under its seal and the signature of its secretary, and called for the construction of a roof of “No. 2 Mission Tile.”

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The uncontradicted evidence of Oswald Spear, manager of plaintiff, was that “No. 2 Mission Tile” simply meant red tile of a certain kind and quality, but did not indicate any particular shade of red, and that such tile varied in shades of red as the necessary result of its process of manufacture. There is nothing in the written contract calling for tile of any particular shade of red; it is simply described as “No. 2 Mission Tile.”

The defense relied on is that there was “a previous or contemporaneous oral agreement that the tile should be of the color of that on certain of the University buildings” at Berkeley, at which place the building of defendant is situate; and that, upon the arrival of the tile, the defendant objected thereto, as not as agreed, whereupon the plaintiff insisted that the tile would look all right, and that if the same should not be satisfactory to defendant when the roof was finished, plaintiff would at once remove the same and replace it with tile of the desired color.

Defendant alleged and claimed that the tile was not satisfactory in that it was not of the desired and agreed color, and accordingly notified plaintiff to remove the same.

The claim of a prior or contemporaneous agreement to the effect that the tile should be of the same color as that used in the buildings of the University of California was clearly an attempt to vary and modify the terms of a written agreement by parol, which is not permitted under the law.