202 P. 146 | Cal. | 1921
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *401 This appeal is upon the judgment-roll alone and is from a judgment in favor of plaintiff against the defendant.
The allegations of the amended complaint, essential to the determination of the questions presented, are that the parties entered into an agreement whereby defendant agreed to furnish and install two gas engines, "240 I. H. P. [Indicated horse-power] . . . for the price of forty thousand (40,000.00) Dollars"; that such agreement was executed in confirmation of a written proposal theretofore submitted by defendant to plaintiff and verbally accepted by the latter, which provided that the engines should develop not less than 150 brakehorse-power; that it was the intention of the parties that a stipulation to that effect should be included in the contract. That the contract erroneously omitted any reference to, or warranty of, the development of 150 brake horse-power; that plaintiff executed said agreement in the belief that said provision was therein contained; that the omission of said provision warranting the development, by said engines contracted for, of 150 brake horse-power *402 was a mistake. "That at the time of entering into said agreement and prior thereto defendant was informed and advised by plaintiff of the particular purpose for which said engines were to be used, and defendant at all times was informed and advised and had actual knowledge that it was required by plaintiff, and that it was necessary that said engines develop not less than 150 brake horse-power, otherwise said engines would be of no use for the purpose required." That defendant at all times, both prior to and at the time of, entering into said contract, agreed with and warranted to plaintiff that each of said engines would actually develop in excess of 150 brake horse-power. That plaintiff, relying upon said warranty and agreement on the part of the defendant, paid defendant the sum of ten thousand ($10,000) dollars as a deposit on account of the purchase price of said engines.
That thereafter defendant notified plaintiff that the engine mentioned in the said written agreement "would develop only 140 brake horse-power, whereupon plaintiff refused to accept delivery of said engines and demanded a return of said deposit of ten thousand ($10,000.00) dollars," which defendant refused. The prayer is for a money judgment only, to wit, the sum of ten thousand dollars and interest. The defendant demurred generally and specifically to the complaint, which demurrer was overruled. Whereupon the defendant answered, admitting the execution of the agreement, which is set forth in haec verba, but denied all of the aforementioned allegations of the complaint, particularly the one to the effect that it was agreed that the engines should develop 150 brake horse-power, or any other brake horse-power, and averred that the only proposal submitted to the defendant by plaintiff was embodied in the agreement set forth in the answer, which agreement makes no mention whatever of "brake horse-power." It denied that the omission from the contract of a provision warranting the development by the engines of 150 brake horse-power, or any other brake horse-power, was a mistake, or that there was any mistake made by either plaintiff or defendant in the execution of the contract, and averred "that the said contract embodied all and every condition, warranty, and reference intended by the parties to be contained therein." Payment of ten thousand dollars is admitted, *403 coupled with the averment that it was paid under the terms of the contract set forth in the answer.
The defendant also filed a cross-complaint, which refers to the contract mentioned in its answer, makes it part of such cross-complaint, and alleges upon information and belief that plaintiff entered into a contract with the Standard Oil Company to furnish the latter two engines which would develop "in the amount of 150 brake horse-power," which were the engines covered by the contract between plaintiff and defendant. It is further stated in the cross-complaint that "after theengine had been built by the manufacturer as called for in the contract," defendant (cross-complainant) was informed by the manufacturer that it would only develop 140 brake horse-power, although built in accordance with the terms of the contract between plaintiff and defendant. That defendant informed plaintiff of that fact and offered to rescind the contract between plaintiff and defendant "and tender to the said plaintiff the sum of ten thousand dollars" paid by plaintiff to defendant under the terms of the contract, which offer plaintiff refused to accept, "but demanded that this defendant procure the engine from the manufacturer, and in reliance upon the terms of said contract and in pursuance of the said demand" the defendant ordered the "said engines shipped"; that plaintiff refused to take delivery, and that by reason thereof defendant has been damaged in the sum of twenty thousand dollars, upon which amount ten thousand dollars has been paid. A demurrer to the cross-complaint was overruled; thereupon plaintiff answered denying the material allegations of the cross-complaint with the exception that the Standard Oil Company was a corporation, and repeating certain allegations of his amended complaint, and averring that the engines called for by the contract between him and the defendant were "to be installed in a motor boat being constructed by plaintiff for the Standard Oil Company, and which, under the terms of the contract of plaintiff with said Standard Oil Company," it was "agreed would develop 150 brake horse-power," of which the defendant at all times had knowledge.
The necessity for the foregoing exhaustiverésumé of the pleadings is apparent from what follows.
The court made its findings covering every material issue raised by the pleadings and rendered judgment in favor of *404 plaintiff, from which judgment defendant prosecutes this appeal.
The defendant contends that the judgment is erroneous because not supported by the following particulars: First — That there was no expressed or implied warranty as to brake horse-power; that the engines tendered by defendant were in full performance of the contract and that plaintiff, in not accepting them when tendered, violated his contract. Second — "That plaintiff has mistaken his remedy in seeking to recover the part payment for the reason that the findings show that he has at all times refused to cancel the contract even after knowledge that the engines would not develop over 140 brake horse-power; that he has not rescinded nor offered to rescind and that he has not sought to reform the contract and sue for the damages sustained by reason of the alleged breach of the reformed contract."
[1] We think most of the foregoing contentions are predicated upon a misconception by defendant of plaintiff's cause of action and the theory of his claim for recovery. He is not suing upon an express warranty as to brake horse-power, neither is the action primarily one to reform a contract and recover damages for its alleged breach as so reformed. We agree with defendant that neither the provisions of section
[3] Plaintiff's claim for the recovery of the ten thousand dollars paid by him on account of the price of the engines in question is based upon an alleged total failure of the consideration upon which it was paid in that the engine tendered did not comply with those to be furnished under *405
the contract which the court found was entered into by him with the defendant. In short, the action is for money had and received, which this court has held may be maintained whenever an equity or legal right arises from the circumstances that one person has money which he ought to pay to another. (Quimby v. Lyon,
[4] The code declares that a party to a contract may rescind it where "through the fault of the party as to whom he rescinds, the consideration for his obligation fails, in whole or in part." (Civ. Code, sec.
The following, taken from S.C. V. Peat Fuel Co. v. Tuck,
We cannot concede the correctness of defendant's contention that there was no rescission of the contract in question by plaintiff. It is true that the court found that defendant at one time offered to cancel the contract, which offer was refused, and that plaintiff demanded that defendant fulfill it, but the court further found "that thereafter defendant tendered to plaintiff . . . the same engines that defendant notified plaintiff would develop only 140 brake horse-power; that plaintiff refused to accept [them] . . . and thereupon demanded of said defendant the return of the said deposit of ten thousand dollars." This is clearly a finding of rescission by plaintiff, and it was in fact a rescission; plaintiff could not have done more, except, possibly, to have said, which would have added nothing to the efficiency of the rescission, "I rescind the contract existing between us."
[5] In Richter v. Union Land etc. Co.,
[6] Appellant correctly affirms that the law is well settled, to use the language of the statute, that "the execution of a contract in writing, . . . supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument" (Civ. Code, sec.
[8] It is not necessary that the contract be formally revised (Gardner v. California Guarantee Inv. Co.,
The authorities cited by respondent to the proposition that a contract cannot be revised by a party thereto because of an omission due to his own negligence are not pertinent to the discussion of any of the questions arising here, for there is no finding that the mistake was due to the negligence of plaintiff.
[9] Defendant further urges that the finding that plaintiff executed the agreement in the belief that it contained the provision which called for the development by the engine of 150 brake horse-power does not justify a reformation of the instrument. In view of the fact that there is a general *408 finding that such omission " was a mistake on the part of the parties," which was the ultimate fact to be found, we can see no merit in this contention. Moreover, the "belief" of plaintiff was in the nature of a probative fact and in no manner inconsistent with the ultimate fact found — indeed, it tends to sustain the latter finding.
[10] There remains for consideration the contention that the amended complaint, as framed, does not raise the issue of "mutual mistake." It alleges "that the omission [from the contract] of said provision warranting the development by said engines contracted for of 150 brake horse-power was a mistake," which allegation was challenged by the special demurrer upon the ground of uncertainty in that it failed to state whether it "was a mutual mistake of the parties, or a mistake of plaintiff which the defendant at the time knew or suspected," which is practically the language of the section of the code just quoted. As we have said, the demurrer was overruled. While we think this was error (Peasley v. McFadden,
The pleadings and the finding of the court hereinbefore mentioned indicate that the issue of mistake was fully presented at the trial.
We find no error in the record justifying a reversal, and are of the opinion that the findings amply support the judgment, and it is therefore affirmed.
Sloane, J., Lennon, J., Angellotti, C. J., Lawlor, J., and Shaw, J., concurred.
Rehearing denied.
All the Justices concurred. *409