113 Cal.App. 347, Civ. 7453, Gleeson v. Dunn

Docket Nº:Civ. 7453
Citation:113 Cal.App. 347, 298 P. 119
Opinion Judge:STURTEVANT, J.
Party Name:GLEESON v. DUNN.
Attorney:[298 P. 120] Arthur A. Hyman, Harold B. Haas, and Rudolph J. Scholz, all of San Francisco, for appellant. Robert E. Hatch, of San Francisco, for respondent.
Judge Panel:We concur: NOURSE, P.J.; SPENCE, J.
Case Date:April 10, 1931
Court:California Court of Appeals

Page 347

113 Cal.App. 347

298 P. 119




Civ. 7453

District Court of Appeals of California, First District, Second Division

April 10, 1931

Rehearing Denied May 9, 1931

Hearing Denied by Supreme Court June 8, 1931

Appeal from Superior Court, City and County of San Francisco; K.S. Mahon, Judge.

Action by M. Gleeson against B.J. Dunn. From a judgment for plaintiff, defendant appeals.


Page 348

[298 P. 120] Arthur A. Hyman, Harold B. Haas, and Rudolph J. Scholz, all of San Francisco, for appellant.

Robert E. Hatch, of San Francisco, for respondent.


As the assignor of Oscar R. Thayer, an architect, the plaintiff commenced an action against the defendant to recover for the services of said architect. The defendant answered and a trial was had before the trial court sitting without a jury. The court made findings in favor of the plaintiff, and, from a judgment entered thereon, the defendant has appealed and has brought up typewritten transcripts.

In the first count of his amended complaint the plaintiff pleaded in haec verba his assignor's contract of employment. He also set forth a common count for the reasonable value of the services. The defendant in his answer interposed numerous denials and also some affirmative matter. The affirmative matter was to the effect that there was a collateral agreement that the contract of employment was to take effect only on the condition that the defendant should first secure the title to the property described in plaintiff's amended complaint.

Page 349

The defendant contends that the rulings of the trial court on the admission and rejection of evidence prevented him from proving his affirmative defense. This contention is based on the following rulings. When the plaintiff was on the stand the following proceedings were had: " Mr. Walsh: Q. Was there any conversation at that time leading up to this contract?

" Mr. Scholz: I object to that. Any oral conversation leading up to the contract is incompetent, irrelevant and immaterial.

" The Court: Sustained.

" Mr. Walsh: Now, if the Court please, before I go any further, I want to state my position. One of our defenses to this action, if your Honor please, is that this contract never came into effect, because there were certain conditions precedent to take effect before the contract became binding. We are not trying to alter the terms of the written instrument. We are showing, as a matter of fact, that the contract never came into existence. Now, I would like to lead up to that.

" The Court: Why, it seems to me that you are. Listen to your contract here: ‘ I agree to prepare all necessary plans and specifications for all remodeling and reconstruction of present buildings, and the new buildings, also act as supervising architect for all construction work to be done upon your lot bounded by Central, San Carlos, and Sunshine Avenues, Saucalito, Marian County.’ Now, you stated in there that it is his lot, and that is agreed to. Now, you want to show that it was not his lot; you want to vary it by showing that it was not his lot.

" Mr. Walsh: We are not trying to vary the terms of this instrument. We are trying to show that there was no contract at all.

" The Court: I think that there is a contract."

In the argument, participated in by the court and both counsel, it was made clear that the defendant offered to prove his affirmative defense, and that he was stopped by reason of the recital " on your lot, " which was contained in the written instrument. The defendant cites and relies on P.A. Smith Co. v. Muller, 201 Cal. 219, 256 P. 411. In that case, at page 222 of 201 Cal., 256 P. 411, 412, appear the following passages: " It is well settled by the decisions in many jurisdictions that evidence that parties never intended a writing to constitute a contract, but that in lieu thereof another contract was entered into between them, is not objectionable under the parol evidence rule. Such evidence does not change a written contract by parol, but serves to establish

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