Haggerty v. Warner

• Decision Date: 22 January 1953
• Citation: 115 Cal.App.2d 468,252 P.2d 373
• Parties: HAGGERTY v. WARNER et al. Civ. 19211.
• Court: California Court of Appeals Court of Appeals

Page 373

252 P.2d 373

115 Cal.App.2d 468

HAGGERTY v. WARNER et al.

Civ. 19211.

District Court of Appeal, Second District, Division 3, California.

Jan. 22, 1953.

Andrew J. Copp, Jr. and H. Dexter McKay, Los Angeles, for appellant.

Kaufman & Leland and N. Stanley Leland, Los Angeles, for respondents.

VALLEE, Justice.

Plaintiff appeals from a judgment denying him any relief except as expressly given. It adjudged that he recover $1,796.74 with interest.

Plaintiff's original complaint contained four counts, to which defendants filed an answer. When the matter came on for trial, defendants objected to the introduction of evidence on the first and second counts. The court regarded this motion in the nature of a demurrer, sustained it, and gave plaintiff leave to amend.

Plaintiff then filed a first amended complaint containing seven counts. Defendants demurrer to the first five counts. The demurrers to the first, second, and fifth counts, which were based on a written contract set forth in haec verba, were sustained without leave to amend on the ground the contract alleged was void for uncertainty. The demurrer to the fourth count was overruled. Defendants' motion to strike certain portions of the third count was granted and the demurrer thereto sustained with leave to amend.

Plaintiff then filed what was termed a 'Second Amended Complaint,' but which we shall refer to as an amendment since, in reality, as its first count it amended merely the third count of the first amended complaint (to which a demurrer had been sustained with leave to amend) and retained as its second, third, and fourth counts, the fourth, sixth, and seventh counts, respectively, of the first amended complaint. Defendants answered this amendment. When the matter came on for trial defendants' counsel moved to preclude evidence as to the first and second counts of the amendment on the ground neither one stated facts sufficient to constitute a cause of action. The motion was granted. Defendants' counsel then stated that no defense would be made with respect to the third and fourth counts of the amendment, and conceded that plaintiff was entitled to judgment on either one or the other. The latter two counts sought the recovery of $1,796.74 for monies advanced by plaintiff on behalf of defendants and at their special instance and request. Judgment was, therefore, entered in that amount.

Plaintiff complains that the judgment makes no disposition of the first, second, and fifth counts of the first amended complaint and the first and second counts of the amendment. While the judgment does not in terms dismiss the action as to these counts, we think that is its effect.

Plaintiff contends the court erred in sustaining the demurrers to the first, second, and fifth counts of the first amended complaint without leave to amend. We agree. The contract on which these counts were based reads:

'Pasadena, California

June 25, 1948

'Agreement

'For valueable consideration and services rendered we hereby agree to pay to John W. Haggerty, of Los Angeles, California, his successors, or assigns, Five Per Cent (5%) of all our billings on sales of units for talking dolls and on the records for same. This agreement shall be binding upon us, our successors and assigns.

'Warner and Sons

'J. C. Tittemore Witness'

By J. J. Warner

The premise on which defendants' demurrer was founded was that the foregoing contract was void because 1) it made no provision for its termination, and 2) the phrase 'Five Per Cent (5%) of all our billings on sales of units' is too indefinite and vague to give certainty to the contract. The premise is untenable. In Rutherford v. Standard Engineering Corp., 88 Cal.App.2d 554, 199 P.2d 354, it was contended the contracts were so uncertain as not to constitute agreements enforceable in law. The court said, 88 Cal.App.2d at page 561, 199 P.2d at page 358: 'The answer to the contentions is--did the contracting parties understand each other without indulging in surmise? The trend of recent decisions indicates a policy of upholding contracts if a reasonable construction may be reached that the intention of the parties was mutually understood and readily may be ascertained. Roy v. Salisbury, 21 Cal.2d 176, 130 P.2d 706.' In the last cited case, the Supreme Court said, 21 Cal.2d at page 184, 130 P.2d at page 710: 'It is a fundamental principle as stated in McIllmoil v. Frawley Motor Co., 190 Cal. 546, 549, 213 P. 971, 972: "The law does not favor, but leans against, the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained." [Citations.] Also, adverting to section 1654 of the Civil Code, in cases of uncertainty not removed by the rules stated in sections 1635 to 1653 of that code, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist, and the promisor is presumed to be such party.' Roy v. Salisbury, 21 Cal.2d 176, 184, 130 P.2d 706.

The following facts, among others, deemed true on demurrer, are alleged in the first count of the first amended complaint and incorporated by reference in the second and fifth counts: Defendants, at the time the contract was entered into, were and had been in the business of manufacturing and selling a mechanism, called units, which would reproduce sounds in dolls and other toys; between the fall of 1947 and June 1, 1949, defendants employed plaintiff to exploit and promote the units for them; on May 1, 1949, the parties entered into the contract set forth above; although the contract is dated June 25, 1948, it was not entered into or delivered until May 1, 1949, and was done so to include 'all billings by defenants on sales of units * * * accruing on and after the first day of June, 1949'; from June 1, 1949, defendants have continuously manufactured, sold, and made billings on sales of the units, and the amount of the billings is unknown to plaintiff.

With the foregoing facts in mind, it is obvious from the contract itself that for a valuable consideration and services rendered by plaintiff the parties contemplated he was to receive a certain percentage of all 'sales of units' after May 1, 1949. The time of the delivery of a written contract is ordinarily deemed to be the time when the contract becomes binding unless a different intent appears. 17 C.J.S., Contracts, § 359, page 818. The term 'billings' used in the contract is a verbal noun. What the parties meant by the term is, for the reasons hereafter given, a matter for the trial forum. It is obviously an expression which has a definite meaning in the commercial or mercantile world. Webster's New International Dictionary (2d Ed.) shows, in a footnote, that 'billing' is the 'pres. part. and verbal n. of bill.' It also appears from Webster that 'bill' means '1. To charge or enter in a bill; to make a bill, inventory, or list of; as, to bill goods; to bill passengers. Specif., Com., to enter, or post, in a book of accounts; to prepare a bill of (charges to customers). 2. To submit a bill of charges to, as a customer.'

Nor is the contract fatally uncertain and indefinite, as defendants urge, merely because it omits a time for its duration. The effect of the omission from an agreement of the time of its duration is generally determined by a construction of the contract, 6 Cal.Jur. 218, § 143, and may be implied from the nature of the contract or from the circumstances surrounding it. 13 C.J. 271, § 60; 17 C.J.S., Contracts, § 36; 12 Am.Jur. 860, § 305; see, Noble v. Reid-Avery Co., 89 Cal.App. 75, 78, 264 P. 341; Miles v. Cal. Growers Wineries, Inc., 45 Cal.App.2d 674, 679, 114 P.2d 651; Sutliff v. Seidenberg, 132 Cal. 63, 64-66, 64 P. 131, 469; Gallagher v. Equitable Gas Light Co., 141 Cal. 699, 706-707, 75 P. 329. The contract is subject to the construction, among others, that it was to continue as long as 'billings' were made by defendants.

The court, therefore, erred in sustaining the demurrer to the first, second, and fifth counts of the first amended complaint without leave to amend.

Plaintiff next urges that the court erred in granting defendants' motion to preclude evidence under the first and second counts of the amendment to the first amended complaint.

The well-established principles with respect to the objection of a...