Neilsen v. Richter

MARKS, J. Plaintiff recovered judgment for $1545 for rental of drilling equipment used in drilling an oil well in Kern County.

It is alleged in the amended complaint that prior to January 7, 1934, plaintiff rented to defendant rotary oil well drilling equipment at a daily charge of $15; that defendant used the equipment from January 7 to July 13, 1934, both days inclusive, and has paid no part of the rental.

All the allegations of the amended complaint are denied in the answer. Three special defenses are set up in an amendment to the answer. We need only concern ourselves with two of them. In the first it is alleged that the equipment had been rented for the sum of $200 which defendant had paid plaintiff in full. In the third it is alleged that the written agreement which forms the basis of plaintiff’s cause of action was without consideration and therefore void.

The written contract provides as follows:

“December 7th, 1933

“I hereby consent to the use by your representatives, successors or assigns, for a period of thirty days without charge, of that certain personal property belonging to me situated on the East half of the Northwest quarter of the northwest quarter of section 15-27-28, Kern County, California, and described as a steam engine, draw works, cable, swivel, hook, traveling block and pipe fittings. If custody of said property be detained past thirty days a charge of fifteen dollars a day will be made for each and every day that said property remains on/or is used on said property and/or until redelivered to me at 2605 Q Street, Bakersfield. Haulage charges will be at your expense. Very truly yours, M. K. Neilson. I hereby consent to the above terms for use.

‘ Edward Richter. ’ ’

Plaintiff introduced this contract in evidence, proved that the equipment had been in the possession of defendant; that some part of it had been returned several months after [548]January 7, 1934; that some of it had not been returned; that no rent had been paid for the period following January 7, 1934.

At the trial defendant took the position that the contract was ambiguous for the reason that it could not be ascertained from its language from whom plaintiff was to receive the rental. He attempted to introduce evidence of the declarations of the parties and the circumstances existing at and before its execution. This evidence was excluded on the ground that it was an attempt to vary by parol the terms of a written contract.