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SHAW, J., dissenting.
—I dissent. I take it that no proposition is more fully settled than this, that parol evidence cannot be admitted or used to vary or contradict the effect of a written contract. In this state this rule has the express force of statute law. ‘ ‘ The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” (Civ. Code, sec. 1625.) “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” (Civ. Code, sec. 1639.) “The language of a contract is to govern its interpretation, if the language is clear and explicit.” (Civ. Code, see. 1638.) And the previous decisions of this court are in full accord with these principles. “The law deems all such stipulations merged in the writing, which is treated as the exclusive medium of ascertaining the agreement to which the parties bound themselves.”
(Goldman
v.
Davis,
23 Cal. 256;
Guy
v.
Bibend,
41 Cal. 322;
Ward
v.
McNaughton,
43 Cal. 159;
Nicholson
v.
Tarpey,
89 Cal. 617.) Parol evidence is inadmissible to prove that an unconditional written obligation is not to be performed except upon a contingency not stated in the writing.
(San Jose Sav. Bank
v.
Stone,
59 Cal. 187;
Long
v.
Saufley,
89 Cal. 439;
Bradford Inv. Co.
v.
Joost,
117 Cal. 210;
Cashman
v.
Harrison,
90 Cal. 297;
Dexter
v.
Ohlander,
89 Ala. 262.) The majority opinion holds that this ease is an exception to the rule.
The reason first given is, that the ticket in question, notwithstanding its terms, is subject to the rules and regulations of the defendant company contrary thereto. I concede that proof of such regulations or of other explanatory facts, coupled with proof of knowledge thereof by the parties, is competent to help out a contract where it is uncertain, or to supply anything omitted therefrom. It would have been proper, for illustration, to show in the case at hand what was meant by the “Martinez route,” and by the “Owl train.” For this would explain what would otherwise be an ambiguity in the terms of the contract. But here the effect of the regulation is to contradict the contract, to destroy altogether the undertaking of the defendant therein set forth, except upon
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a condition not therein expressed, and to require the payment of an additional consideration for an additional accommodation as a condition precedent to the existence of any obligation on the part of the carrier. The proposition that such regulations control, instead of the contract, is certainly a startling one. There is a well-known principle to the effect that a contract must be interpreted according to the law or usage of the place where it is to be performed. (Civ. Code, sec. 1646.) It has been said that such laws are a part of the contract. (9 Cye. of Law and Proc., sec. 582.) But even this doctrine is confined to such terms as are omitted from the contract, and which the law supplies. Where the contract is contrary to the law, it does not have the effect of adding a term to the contract, and thus making an agreement to which the parties have not consented, but of making the contract to that extent invalid. I think it has never before been decided that the rules and regulations of a railroad company are of greater potency than the law of the land, and when inconsistent with and contrary to a written contract, into which the company has entered, are paramount thereto, and furnish the legal measure of the rights of the parties, instead of the contract itself. Not even a general usage or custom of trade, much less a mere business regulation of one of the parties, can be proven to relieve a party from his express stipulation, or to vary a written contract which is certain in its terms. (Code Civ. Proc., sec. 1870, subd. 12;
Holloway
v.
McNear,
81 Cal. 156;
Burns
v.
Sennett,
99 Cal. 371;
Milwaukee Co.
v.
Palatine,
128. Cal. 74;
Ah Tong
v.
Earle Fruit Co.,
112 Cal. 681.)
The other reason given for the prevailing opinion is, that “a railroad ticket is not a contract expressing all the conditions and limitations usually contained in a written agreement,” but “is more in the nature of a receipt given by the railroad company as evidence that the passenger has paid his fare for a certain kind of passage on the proper trains of the company, as limited and regulated by its rules.” Of course, railroad tickets do not always express the whole contract. In fact, they seldom do. But this is beside the question. We are not here concerned with some term of the actual agreement that was omitted from the writing, but with a term which was inserted, and which defendant seeks to nullify
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by proof of a parol contract of a different effect. With singular inconsistency, the majority opinion quotes in its support a passage from
Dietrich
v.
Pennsylvania etc. R. R. Co.,
71 Pa. St. 436,
1
the very first words whereof are, “So far as they are expressed the terms are binding, of course.” I concede that where a railroad ticket is unsigned, and is a mere memorandum expressing, in part, an agreement for the carriage of the passenger, it is proper to supplement it, or even contradict it, by proof of additional parol conditions and stipulations inconsistent with the printed memorandum. Many of the decided cases are thus explainable. But it cannot be successfully contended that the ticket here in question was not a contract, intended to be binding on the parties, so far as it expressed the terms thereof. This is best shown by the contract itself. It was regularly signed by the plaintiff and indorsed by the defendant, and was as follows:—
“Special limited ticket good for one continuous first-class passage, San Francisco to Los Angeles. 9:26 m. Good only by Martinez route, by train No. .. ‘The Owl’ subject to the following contract: In consideration of this ticket being sold at a rate less than the regular first class rate, I, the purchaser, hereby agree that it shall not be good for passage after the date indicated by the agent’s punch marks in the margin (Nov. 12,1899), and that it will be good only for a continuous trip to destination by the proper train and its connecting trains. That it is not transferable and shall be void after . the date of expiration. And that failing to accept and comply with this agreement, the conductor will refuse to accept this ticket, and demand the full regulation fare, which I agree to pay. No stop-over privileges will be given on this ticket. Baggage must not be checked hereon to or from intermediate or way stations. Liability for damage limited to $100. Agent will in no case extend time on this ticket. If more than one date be punched, it shall not be received for passage by conductor.” (Signed) “W. Ames.”
(Indorsed by stamp) “Southern Pacific Company,
“November 11, 1899.”
The defendant must certainly have intended to exact from the plaintiff the execution of this ticket as a contract, and
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one that would be binding on him for all the conditions expressed therein. The cases involving tickets not signed, or terms not covered by the contract therein expressed, have no application here. It is from such cases alone that the prevailing opinion finds support. If the evidence offered had been of some agreement not contradictory of the agreement expressed in the ticket, it would of course have been admissible, but this cannot be contended. The ticket in question was a clear undertaking on the part of the defendant to carry the plaintiff upon a continuous trip with first-class accommodations on the Owl train from J3an Francisco to Los Angeles by the Martinez route. No conditions were expressed requiring the purchase of any berth upon the sleeping-car. By the parol evidence introduced the defendant endeavored to prove that, notwithstanding" this agreement, there was a contract that the defendant should be under no obligation to carry the plaintiff upon that particular train, unless, in addition to the price of .the ticket which he paid, he should succeed in purchasing from another company a berth in a sleeping-car at an additional price. This was making a contract inconsistent with the written contract, and is contrary to all the principles laid down in our codes, and contrary to the rules expressed in the authorities cited in the prevailing opinion itself. I can see no reason why a railroad company is not as much bound by such a contract for the carriage of a passenger as it is by the terms and conditions of an ordinary bill of lading for the carriage of freight. The signature to a ticket is required because the railroad company intends that the passenger shall be bound. It is an unvarying rule that contracts are mutual, and if one party is bound by its terms both must be.
There is no element of hardship in the case which requires any relaxation of the rule. The defendant was entitled to the benefit of the evidence which it introduced, not for the purpose of varying or changing the contract in the least, but for an entirely different purpose. The question of damages was a material one" in the case, and it was proper for the defendant to prove that the plaintiff had been informed before he entered upon his journey that he would not be allowed to ride upon that train unless he obtained a sleeping-
[738]
car berth. If he was thus warned of the consequences he could not claim so much damages as he might well do if he had been taken by surprise and ejected from the train without previous notice. The testimony was therefore admissible in mitigation of damages, and would be of much weight for that purpose, but it should not be used to vary the contract expressed in the ticket.
Beatty, C.. J., concurred with Shaw, J.
Rehearing denied.
1
10 Am. Rep. 711.