Calhoun v. Bernard

• Decision Date: 28 May 1964
• Docket Number: No. 18784.,18784.
• Citation: 333 F.2d 739
• Parties: Frank A. CALHOUN, individually and dba Calhoun Dry-Wall Company, Appellant, v. J. W. BERNARD et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

333 F.2d 739 (1964)

Frank A. CALHOUN, individually and dba Calhoun Dry-Wall Company, Appellant, v. J. W. BERNARD et al., Appellees.

No. 18784.

United States Court of Appeals Ninth Circuit.

May 28, 1964.

Frank A. Calhoun, San Bernardino, Cal., in propria persona.

Dillavou & Cox, George M. Cox, Roswell Bottum, Jr., Los Angeles, Cal., for appellees.

Before BARNES, MERRILL and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Appellees are trustees of a pension fund established in 1959, pursuant to a collective bargaining agreement between Southern California Contractors and the United Brotherhood of Carpenters and Joiners, entered into in 1954, as modified in 1957 and 1959. Appellant is a contractor employing carpenters who belong to the union. Appellees sued as third party beneficiaries under a contract between appellant and the union, dated July 31, 1959, alleging that under that agreement appellant was bound to make payments to the Carpenters Pension Fund on behalf of his employees and that he failed to do so. The action was originally brought in the Municipal Court of Los Angeles, and removed by appellant, asserting original jurisdiction of the federal district court by reason of 29 U.S.C. §§ 185(a), 186(c).

Before July, 1959, appellant had been a member of the California Drywall Association, an employer collective-bargaining unit. As such, he had been bound by the 1954 and 1957 Master Agreements. In July of 1959, he withdrew from the association and informed the union that in the future he intended to negotiate for himself. Negotiations resulted in the signing of a printed "Memorandum Agreement," prepared by the union, out of which this dispute arises.

Appellees assert that appellant bound himself to make payments to the pension fund by reason of a clause of the first paragraph of the agreement:

"* * * that the undersigned employer agrees to comply with the wages, hours, and working conditions as set forth in that certain agreement referred to for convenience as the LABOR AGREEMENT BETWEEN SOUTHERN CALIFORNIA GENERAL CONTRACTORS AND UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, dated May 1st, 1954 (copy of which has been delivered to me and receipt of which is hereby expressly acknowledged) and any modification or changes herein." (Emphasis added)

Although the pleadings below did not make it clear, it was appellees' position that the word "herein" was a typographical error, that it should have read "therein," and that read thus it incorporated subsequent agreements between the association and the union, which provided for the establishment of the pension fund. Appellant argued that "herein" referred to modifications and changes in the 1954 agreement made in the 1959 memorandum agreement (of which there was none), and that he had never agreed to contribute to the pension fund.

The case was tried below to the court, and exhibits were received and witnesses heard, but appellant has not brought up the transcript of the testimony on this appeal. The court held that appellant owed the money to the pension fund, finding (as a conclusion of law) that the word "herein" was a typographical error, and modifying the contract accordingly to read "therein."

Appellant makes two arguments: First, that "herein" has a clear and definite meaning and the court could not consider parol evidence to alter its meaning, and second, that, assuming the court to have been correct in its finding of typographical error, appellees still cannot recover, because the error was that of the union which supplied the printed document, and it must therefore be construed against the union. He asserts that he was misled by the word, and would not have signed the agreement if he had known he was bound to contribute to the fund.

The first argument is without merit. Treating the court's finding as one of fact, rather than a conclusion of law, as both parties seem to, and as we think we should, it will not be reversed unless clearly erroneous. (Rule 52(a) F.R.Civ.P.) Findings of the trial court carry a presumption of correctness, and appellant bears the burden of bringing up a record which clearly shows the asserted error. United States v. Foster, 9 Cir., 1941, 123 F.2d 32; Glens Falls Indem. Co. v. United States, 9 Cir., 1955, 229 F.2d 370. Here appellant offers mere assertions, apparently based on his testimony below, which is not before us.

Nor does the parol evidence rule help appellant. He cites Cal.Civ.Code, § 1638: "The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity." Whether one can go so far in this case as to say "herein" constitutes an absurdity is doubtful, but we think it less than clear and explicit. The reading of the contract that appellant urges is permissible, but to make it clear and explicit would require the insertion of words that are not there, such as "* * * and any modification or changes in that agreement stated herein." (The added words are in brackets). Even with some such added words, there might be doubt, because in fact the agreement does not state any modifications in the 1954 agreement. Thus, the language, even as made more explicit, would have no real effect. (Cf. Cal.Civ.Code, § 1641) It could also be argued, because the agreement is a printed one, that "herein" was inserted to make it clear that typed or handwritten material added to it would control to the extent that it might be inconsistent with...