Guidery v. Green, 95 Cal. 630

Guidery v. Green

95 Cal. 630 | Cal. | 1892

Harrison, J.

The plaintiff’s intestate, one Frost, brought this action to obtain certain specific relief for an alleged violation of a written agreement entered into between him and the defendant, January 12, 1885. The defendant set qp as one of his defenses to the action that the agreement set out in the complaint had been superseded and annulled by a subsequent written agreement, executed in March, 1885, by the plaintiff and one Threlfall on the one part, and the defendant on the other. *633Upon the trial of the cause, the defendant, after having proved the execution of the subsequent written agreement, sought to show that it had been executed upon the consideration and agreement between the parties thereto that the agreement of January 12, 1885, should be canceled, and all claims of the plaintiff against the defendant thereunder waived. The plaintiff objected to this testimony, on the grounds that it was an attempt by parol evidence to vary and contradict the terms of a written instrument, and also that it was not responsive to any issues made by the pleading. The court having sustained this objection, the defendant then presented certain amendments to his answer, in order to obviate the objection that the evidence was not within the issues, which he asked leave to file. To this the plaintiff objected, upon the ground “ that it is too late, that it is unconscionable, that it is taking us by surprise, and that it shows gross negligence on their part in not asking to amend before,” which objections were sustained by the court.

If the defendant could establish the facts presented by these amendments to his answer, they would constitute a defense to the plaintiff’s demand (Farmers’ N. G. Bank v. Stover, 60 Cal. 387); and for that reason, if for no other, the court should have allowed the amendments. (Stringer v. Davis, 30 Cal. 321.) If, by reason of such amendments, the court was satisfied that the plaintiff was taken by surprise, and required further time in which to make suitable preparations for meeting such defense, it could have continued the case or postponed the further hearing until the plaintiff should have reasonable time to make such preparation, and at the same time would impose upon the defendant such terms as would compensate the plaintiff for the expense and delay caused thereby. It can very rarely happen that a court will be justified in refusing a party leave to amend Ms pleading so that he may properly present his case, and obviate any objection that the facts which constitute his cause of action or his defense are not embraced within *634the issues, or properly presented by his pleading. This rule is especially cogent when the objection to testimony is not that it is then for the first time brought to the notice of the adversary, but that by reason of the language of the pleading it is not within the terms of the issue. The fact sought to be shown by the testimony offered on the part of the defendant was not a defense then for the first time presented in the case. The defendant had attempted to set it up as a defense in his original answer, but by reason of certain phraseology used therein, the court held, upon the objection of the plaintiff, that it did not present an issue that would render the testimony admissible; and when the defendant asked leave to amend his answer so as to obviate this ruling, the court should have granted his motion.

The evidence offered did not purport to vary or contradict the terms of the written instrument set forth in the complaint, nor did it have the effect to add any new term to that agreement. Its purpose was to show that that agreement had been canceled by mutual consent, and had no longer any operative effect. Such evidence is as admissible as is oral testimony that the terms of a written agreement have been fully performed by the parties, or that the instrument evidencing such agreement has itself been canceled and destroyed by the concurrent act of both parties. In either case the object and effect of such evidence is not to change any of the terms of the contract, but to show that the contract has no longer any existence, and therefore cannot be made the basis of an action. The objection that the written agreement could be altered only by an. agreement in writing, or by an executed oral agreement (Civ. Code, sec. 1698), has no application to the facts offered to be shown. The offer was to show that the subsequent written agreement had been substituted for the original agreement, and the oral agreement of which proof was offered was the agreement to make this substitution. It was not an offer to prove an executory oral agreement, but an oral agreement that had been *635fully executed by the substitution. This in effect was an offer to prove a novation. (Farmers’ N. G. Bank v. Stover, 60 Cal. 387.) Neither did this testimony tend to vary or contradict the terms of the subsequent written agreement, but was merely for the purpose of showing the consideration upon which it was executed. The instrument itself was silent upon the subject of its consideration, and any evidence in reference thereto would not affect its terms or impair their validity.

After the defendant had proved the execution of the second written agreement, the witness Threlfall was asked concerning the compensation he and Frost were to receive from the defendant in case they should make the sale therein provided for; and upon the objection that this testimony would vary or contradict the terms of the written instrument, the court excluded it. The written agreement, however, made no reference to the compensation they were to receive, and the evidence sought was concerning a separate collateral agreement entered into between the parties, and was entirely independent of any of the terms of the written agreement, and the court should have allowed the question to he answered. Proof is always admissible of any collateral parol agreement, or of any independent fact which is not inconsistent with or does not qualify any of the terms of the written contract, even though it may relate to the same subject-matter.

The order is reversed.

Paterson, J., and Garoutte, J., concurred.