Sivers v. Sivers
Before: Harrison
Synopsis
Parol Evidence — Written Contract to Pay Money — Oral Agreement— Time of Payment. — Where a written contract for the payment of money is silent as to the time for the payment, it is competent to prove by parol evidence that a period or event had been orally agreed upon between the parties at which payment should be made.
Id.—Role as to Parol Evidence — Contemporaneous Oral Agreement. — The rule excluding oral evidence affecting the terms of a written instrument does not apply when the parties have not incorporated into the instrument all of the terms of their agreement, and when the evidence offered or the oral agreement sought to be proved is not inconsistent with the terms embodied in the instrument, evidence of a contemporaneous oral agreement as to any matter upon which the instrument is silent, and which is not inconsistent with its terms,, cannot he said to contradict or vary the terms of the written instrument.
Id. — Contract Payable on Demand — Finding as to Oral Agreement. — Where a written contract for the payment of money fails to specify any time for its performance, the instrument becomes payable immediately upon demand for payment. Where such demand was made before the commencement of the action, and also in accordance witli an oral understanding between the parties as to the time of payment, the fact that oral evidence was admitted to show, and the court found, that the defendants orally agreed, at the time of the execution of the contract, to pay the money whenever they should sell certain real estate therein described, and that such sale had been made prior to the plaintiff’s demand, could not prejudice the defendants.
Former Judgment — Justice’s Court — Order Sustaining Demurrer — Dismissal without Prejudice. —A decision or order of a justice of the peace sustaining a demurrer to a complaint does not constitute a judgment of that court, though so styled by the justice; and such decision or order is no bar to a subsequent action in the superior court. If a judgment had been thereafter entered upon such decision or order, it must have been that the action be dismissed without prejudice to a new action.
Id.—Dismissal by Plaintiff — Entry of Judgment—Former Action Pending. — Where the plaintiff filed a dismissal of the action in the justice’s court after an adverse ruling upon demurrer to his complaint, the fact that no judgment of dismissal was entered therein cannot he considered in a subsequent action brought in the superior court, if the defense of a former action pending in the justice’s court is not presented in the superior court.
Harrison, J. The defendants executed to the plaintiff the following instrument in consideration of the loan to them by the plaintiff of the sum of three hundred dollars:—•
“San Francisco, January 26, 1889.
“ The undersigned agreement entered into between J. H. Sivers, of San Francisco, and John Sivers and Eliza Sivers, his wife, that the said John Sivers and Eliza Sivers do jointly and severally agree to pay to the said [520]John H. Sivers the sum of three hundred ($300) dollars advanced or loaned to us, or any further sum of money which he may loan to us at such time as circumstances may occur, — that is to say, that if in any event either of us should die, then the survivor shall assume the debt and pay it as if both were living, and we further agree that if the money or loan or moneys so advanced is not paid before the expiration of five years from the first day of January, 1889, last past, then we jointly or severally agree to give a mortgage to the said J. H. Sivers upon the land or property which we own or occupy, described as follows: Southeast quarter of section 4, in township 27 north, of range 6 west, Tehama County, California.
[Signed] “John Sivees.
“Eliza Sivees.”
The court finds as a conclusion of law “ that no time of payment being specified in the obligation herein sued upon, the same became payable immediately upon the demand made by plaintiff for the payment thereof,” and rendered judgment in favor of the plaintiff.
It is also alleged in the complaint and found by the court that at the time of the execution of the instrument it was agreed between the parties that the defendants should pay the sum named in the instrument whenever they should sell the real estate therein described, and that such sale had been made prior to the plaintiff’s demand and the commencement of the action. This finding of the court was made upon oral testimony thereof, and the appellants contend that it was incompetent to show such agreement by such testimony, for the reason that the written instrument must be held to embrace all the terms of the agreement between the parties.
The instrument executed.by the parties does no.t by any specific terms designate the time for its performance. That the provision for payment by the survivor in case one of the makers should die did not postpone the time for payment until that event is shown by the clause providing that in that event it is to be paid “ as
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)