284 P. 713 | Cal. Ct. App. | 1930
This is an appeal by plaintiff from an adverse judgment in an action to recover the sum of $565 on a rejected claim theretofore presented for allowance against the estate of Ellen M. Wetherbee, deceased.
The facts as they appear from the findings and the evidence supporting the findings are as follows: Mrs. Wetherbee subscribed for a set of books which plaintiff was about to publish, entitled "California and Californians," the purchase price being $65. A few days later plaintiff's representative stated to her that if she would agree to cancel said subscription and pay an additional $1,000 plaintiff would reproduce the portrait of herself and her deceased husband in said books from steel plates which would be entirely hand engraved and deliver to her a set of the books, the hand-engraved steel plates from which the portrait was to be reproduced and ten prints therefrom. Mrs. Wetherbee accepted the proposition and thereupon plaintiff's representative prepared a memorandum of the agreement, which was addressed to plaintiff, signed by Mrs. Wetherbee, and provided among other things that one-half of the agreed *427 price of $1,065 should be paid on submission of the proofs and the balance on delivery of the books, etc. Mrs. Wetherbee made the first payment of $500, as called for in the agreement, but before the publication of the books was completed she died. Thereafter the books were sent by express to her late residence, and defendants refused to accept or pay for the same for the reason, as the answer alleges and the evidence shows, that the portrait of Mrs. Wetherbee and her husband was not reproduced therein from steel plates entirely hand engraved, as plaintiff agreed it would be, but were executed on plates partly machine made and of a greatly inferior quality. The trial court concluded from the foregoing facts that plaintiff had not performed its contract; that there had been a failure of consideration, and that, consequently, plaintiff was not in a position to enforce the terms of the contract against the other party thereto.
[1] The main contention made by plaintiff in support of the appeal is that the findings and judgment are erroneous in that they are founded upon evidence which is violative of the code provisions declaring in effect that a contract when reduced to writing supersedes all negotiations and stipulations concerning its matters which preceded or accompanied its execution (Civ. Code, sec.
[3] Moreover, it is well settled that section
[5] Plaintiff makes the further contention that, aside from the merits of points mentioned, defendants are nevertheless liable for the payment of the full contract price because the books were not returned. The evidence upon this point shows, however, that defendants never did accept the books; that some time after they arrived by express at the residence of Mrs. Wetherbee, following her death, they were removed to the city library, but by whom or at whose direction the evidence does not make clear. [6] In any event, as stated in Rathbun v.Security Mfg. Co.,
In view of the conclusions we have reached upon the matters above discussed it becomes unnecessary to consider or determine the remaining contentions made by plaintiff, which relate to the question of plaintiff's corporate entity.
The judgment is affirmed.
Tyler, P.J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 26, 1930, and *430 a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 27, 1930.
All the Justices present concurred.