Davis Welding & Manufacturing Co. v. Advance Auto Body Works, Inc.

NOURSE, P. J. Plaintiff sued upon an open book account and for an accounting. Defendant answered, pleading a written contract of June 30, 1930, and also a contemporaneous oral agreement by which plaintiff agreed that, if defendant would pay for and take delivery from plaintiff of certain equipment which the defendant would be required to purchase to enable it to perform the contract, then, upon the termination of the written contract, plaintiff would repurchase such and other like equipment left on defendant’s hands. Defendant also filed a counterclaim and a cross-complaint for the value of equipment left on hand when the parties abandoned the written contract. Plaintiff’s answer to the cross-complaint admitted the written contract but denied the material allegations relating to the alleged oral contract. The intervener above named filed its complaint in intervention setting up a written contract between defendant and intervener, dated July 2, 1930, which expressly incorporated the contract of plaintiff and defendant, and pleading that, at the time of the execution of the contract of July 2d, it was represented to intervener “by plaintiff and defend[272]ant” that they had executed the oral contract referred to in defendant’s pleading. Intervener further alleged that, in reliance upon these representations and promises, he was induced to enter into said written contract with defendant and to advance defendant $2,653.51 to be used by defendant in purchasing equipment under the terms of the written contract of June 30,1930, and that the contract of July 2d would not have been made by intervener without plaintiff’s assurances as to the oral contract.

At the trial by the court without a jury the parties stipulated that the claim upon the open book account was correct . and the sum sued for was owed by defendant to plaintiff. Thereupon plaintiff waived and abandoned the second cause of action—for an accounting under the contract of June 30, 1930—and the cause went to trial on the cross-complaint of defendant, the complaint in intervention, and the answers of plaintiff. The intervener had judgment for $1788.28, the value of the equipment on hand when the written contract was abandoned less what had been returned to plaintiff and paid for by it pursuant to the terms of the oral contract. The plaintiff appealed, and the intervener assumes the position of a respondent.

The gist of the action is plaintiff’s oral agreement to repurchase the parts and equipment upon the termination of the written contract. The existence of such an oral agreement cannot be doubted in view of the convincing testimony of all the parties to the agreement, who were called as witnesses. At the close of the trial the court directed the intervener to request leave to amend the pleadings to conform to the proof—thus to make intervener’s case rest upon a modified written contract calling upon plaintiff to repurchase their parts rather than upon an oral agreement, which was contemporaneous with the written contract, and which called upon the plaintiff to do the same thing. The modification was based upon the theory of mutual mistake of the parties when the contracts were executed and upon the evidence of the intention of the parties that the terms of the oral agreement should become incorporated into the written contracts. The appellant cries “error”, but we are unable to perceive it. The execution of the oral contract having been practically . conceded through the weaknesses of the testimony purporting