Parker v. Meneley

• Decision Date: 30 August 1951
• Citation: 235 P.2d 101,106 Cal.App.2d 391
• Parties: PARKER v. MENELEY et al. Civ. 7936.
• Court: California Court of Appeals Court of Appeals

Page 101

235 P.2d 101

106 Cal.App.2d 391

PARKER v. MENELEY et al.

Civ. 7936.

District Court of Appeal, Third District, California.

Aug. 30, 1951.

Babcock & Phillips, Sacramento, for appellants.

Arthur DeBeau Carr and Wray F. Sagaser, Sacramento, for respondent.

VAN DYKE, Justice.

This action was brought to recover damages for breach of contract. The first count alleges: 'That on or about the 3rd day of April, 1948 defendants, Meneley and Owyang, entered into an oral contract with plaintiff herein wherein plaintiff was to install three water pumps at a cost of $6,251.95; that as well plaintiff was to act as agent for the defendants herein in having three wells sunk for a total amount of $3,565.61; that concomitant with the entering into of this oral agreement, defendants paid to plaintiff the sum of $2,000. That under the terms of said oral contract defendants agreed to pay the full amount of the charges upon completion of the work by plaintiff herein in the amount of $7,817.56. That after the work was started and the wells sunk and pumps installed, defendants herein breached their contract by not paying the balance of $7,817.56 all of which amount is now due, owing and unpaid.' The second count was in form a common count for goods and services. The prayer was for the alleged unpaid balance due on completion of the contract.

Defendants answered, denying all allegations of each count. Defendants cross-complained. They alleged that on the same 3rd day of April plaintiff and defendants entered into a written contract, a copy of which was attached; that defendants had performed all of their obligations thereunder, but that plaintiff had failed to perform, to their damage. Plaintiff answered the cross-complaint, denying the allegations thereof and as a 'further and separate defense' plaintiff repleaded all the foregoing quoted allegations from the first count in his complaint. Plaintiff had judgment in the trial court for $2,667.54; and defendants appealed. We shall hereafter refer to the parties as appellants and respondent, respectively.

The trial court made findings, the essential parts of which follow: Following literally the allegations of the complaint which we have quoted the court found the matters so alleged to be true, with the exception that as to the alleged breach the court found that the appellants had breached their contract 'by failing to pay the balance due of $2,667.54.' 'No findings were made upon the allegations of the cross-complaint. The court concluded as matter of law that respondent was entitled to judgment as above stated, saying that the amount so allowed was 'represented by the cost of digging the wells $3,467.61, less the down payment in the sum of $2,000.00 plus the sum of $580.00 which was spent by the plaintiff and cross-defendant in preparing two concrete bases for the pumps and for removing one pump and plus the sum of $619.93 which plaintiff actually lost in returning these three pumps to the factory.' Judgment was entered for the said sum of $2,667.54.

Proceeding to prove his allegations of oral contract, respondent introduced evidence which may be said broadly to have been in support thereof, including the allegations that he was to have been paid the balance of the contract price upon completion of his agreement. But as might have been anticipated a troublesome issue arose during presentation of respondent's case in chief for it was admitted that after certain preliminary negotiations which respondent claimed merely led to the making of the oral agreement, the parties executed two written instruments, the substance of which we will now state. On a form sheet entitled 'Estimate on Parker Pump Co. Equipment' the following appeared:

'April 3, 1948

'We propose to furnish to Owyang and Meneley

* * *

* * *

'3 Western Turbines specifications listed below:'

There followed detailed descriptions and specifications of the turbines. Then appears the following: 'Installed price is $1,808.00 each', total '$5,424.00.' Then, omitting matters not material, there appeared this language: 'All Three pumps to be shipped from the factory on April 26th, and installed not later than May 1, 1948. Cash deposit of 2,000.00. Balance due on pumps plus sales tax. $3,424.00.' Next and just above the space for 'Customer's signature' appeared this: 'The signature herein is an authorization to install such equipment as described in the above estimate. Terms 2000.00 Cash on Pumps & Wells bal. one year.' Appellant Meneley signed for appellants. Above the space provided for signature by the Parker Pump Co. (the name under which respondent does business) appeared the following: 'Parker Pump Co. is in no way responsible for well drillers' services.' Bruce Bagwill, with admitted authority to act, signed for Parker Pump Co. At the same time and as a part of the same transaction, but upon a duplicate form a document was executed concerning the wells. Thereby Parker Pump Co. proposed to furnish to Owyang & Meneley three wells to be drilled to the necessary depth to produce 2500 gallons per minute. We quote the following: 'Dia. of wells to be 14"'. Drilling cost to be 3.90 ft. as far as casing goes. Drilling below casing and up to 200' at 3.00 ft. Drilling below 200' at 3.50 ft. 14"' Casing as needed at 3.25 per ft. Casing gage to be 3/16"'. Estimated cost of wells 1400.00 to 1500.00 each.' The rest of the document was identical with the one first discussed, including the statement over the customer's signature that the terms were '2000.00 Cash on Pumps & Wells bal. one year.' In the printed forms over the customer's signature the word 'Terms' was printed, followed by a blank space. The words '2000.00 Cash on Pumps & Wells bal. one year' were handwritten in that space.

A comparison of the oral agreement pleaded with the written documents points up the inconsistencies between them. According to the oral agreement as alleged and found the balance of the contract price was to be paid when respondent had performed. By the plain declaration of the written documents that balance was to be paid one year after the parties entered into their agreement. If the oral agreement prevailed there was a theory upon which respondent could proceed as for breach. If the written instruments controlled appellants had not breached their agreement because the action was begun within the year and before the appellants' obligation to pay further moneys matured.

When the wells had been drilled and the three pumps had been shipped from the factory to appellants and one of them was installed upon its base at a well, respondent ceased performance, claiming a right to do so because it had become apparent that appellants could not find the money with which to pay when performance should be complete. He introduced evidence tending to show that immediately after the contract, written or oral, was made appellants sought to obtain funds sufficient to complete the payment for the pumps and wells, applying to various banks for that purpose. They failed. When the one pump had been installed and before the other two had been placed at the wells, respondent told appellants that if the money would not be wholly forthcoming upon completion he would stop at that point. Within a few days he did stop, removed the pump that had been installed and shipped all three pumps back to the factory which received the same at a turn-back price $619.93 less than respondent had paid the factory. Apparently, although this is not expressly stated, respondent ceased performance under a claim of anticipatory breach.

Mr. Bagwill, an accredited representative of respondent, conducted most of the negotiations leading up to the contract, whether it be oral or written. Early in his direct examination respondent caused to be introduced in evidence for all purposes plaintiff's Exhibit No. 1, the form sheet containing the provisions relative to the pumps from which we have quoted. Thereafter appellants objected to the introduction of testimony concerning the negotiations preceding the contract upon the ground that the same contradicted the written instrument. The objections were overruled. During the cross-examination of Mr. Bagwill there was introduced in evidence as defendants' Exhibit A the second document, and it may be said that there is no dispute but that both documents were executed at the same time and as a part of the same transaction and each refers to both wells and pumps. They are, therefore, to be treated as one contract. Respondent's evidence continued to be received over objection and continued to conflict with the writing. When it came time for appellants to present their case their testimony was as follows: They needed water to irrigate 360 acres of land they intended to plant to rice; they had been unable to get an assured supply of irrigation water from a public utility which ordinarily furnished water in that locality because of prior commitments of the utility; they therefore needed three wells and three turbine pumps which they proposed to operate by Diesel generators; they approached respondent and informed Bagwill of their needs, and told him they could pay $2,000 down and would need a year to pay the balance; thereafter the written instruments were signed and respondent ordered pumps and placed drillers upon the land; after this had been done they paid the $2,000 called for by the written instruments which respondent accepted. Respecting their negotiations with lending agencies after the writings had been executed, their testimony was generally to the effect that these things were done, not because they were in any way obligated to further finance their agreement with respondent, but for the accommodation of respondent in order that notwithstanding the contract he might obtain the balance through their having borrowed the needed sum from others. Their position was, and their testimony bore out that position, that in truth and in fact...