Cutten v. Pearsall

California Supreme Court May 6, 1905 No. S.F. No. 2912.Published

Before: Shaw, Van Dyke

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Holding. The court held that the written contract sued upon was a valid, substituted agreement for prior arrangements, and that the evidence supported the jury's verdict that the plaintiff had performed his obligations and was entitled to the specified compensation upon the consummation of the land sale.

Issues

Whether the evidence supported the verdict that the contract sued upon was the entire agreement between the parties.
Whether the sale of the lands mentioned in the contract had been duly consummated.
Whether the trial court erred in admitting evidence of a sale to parties other than those originally contemplated.
Whether the trial court's instructions to the jury regarding the interpretation of the contract were prejudicial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The terms of the last instrument between the parties—to wit, the one in suit—having been reduced to writing, theré can be no evidence of terms other than the contents of the writing, except in certain specified cases”

“The evidence shows that the plaintiff did fully perform the contract on his part to be performed, and that he has not been paid for his services according to the contract is quite evident”

“The judgment and order apealed from are affirmed.”

Synopsis

The facts are stated in the opinion of the court.

Opinion — Van Dyke

VAN DYKE, J.

The complaint in the action under consideration contains three counts: The first is upon an express contract, a copy of which is set forth; the second is a common count in

assumpsit;

the third is a common count for money had and received. The contract set forth in the first count of the complaint is as follows:—

“Eureka, California, Dec. 29th, 1899.

“It is agreed by C. E. Pearsall and David Cutten, that his commissions for services rendered in securing lands in T. 8 N., R. 1 E. and T. 8 N., R. 2 E., Humboldt Meridian, and for all services heretofore rendered by him, and for all services hereafter to be rendered by him in the sale of the tract of land on Little River and Maple Creek, known as the Pearsall deal, shall be the sum of $7,500.00, when the sale is consummated.

“(Signed) C. E. Pearsall.

“I approve the contract. B. F. Durphy.”

It is also alleged in the complaint that the plaintiff had duly performed all the conditions of said contract to be performed by him; that the sale mentioned in said contract has been duly consummated, and that the defendant had not paid plaintiff said sum of seventy-five hundred dollars, or any part thereof. The complaint is unverified, and the answer, which is also unverified, contains simply a general denial.

The case was tried before a jury and a verdict rendered in favor of the plaintiff for the sum mentioned,—to wit, seven thousand five hundred dollars,—with interest thereon at the rate of seven per cent per annum from January 24, 1901.

The defendant thereafter moved for a new trial, which was

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denied, and he appeals both from the judgment and from the order denying his motion for a new trial.

In support of the appeal the appellant relies upon certain alleged errors committed by the trial court in the admission and exclusion of certain evidence, and in giving and refusing to give certain instructions. The main contention, however, appears to be, and is so admitted by counsel in the oral argument, that the evidence does not support the verdict.

Cutten v. Pearsall

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Synopsis

Opinion — Van Dyke

VAN DYKE, J.

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Concurrence — Shaw

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