*1 525 v. 1907.] Peterson Chain. (Kohler complaint 741]), 99 Pac. Agassiz, v. Cal. [33 complaint support an will to an attachment amended be held complaint which has been originally on a defective issued Milliken, an amendment v. Cal. cured {Hale [75 653]), yet, complaint if the to state a cause Pac. fails must dissolved. incurable, action and is the attachment ground plaintiff If a motion to dissolve is made on this complaint motion must amend his before the decision of the will be {Hathaway Davis, 169), to or it dissolve Cal. presumed that he do cannot so. attempt amend; no
The record discloses amendment therefore the attachment should have been dissolved. denying
The order the motion is reversed. Shaw, P.
Allen, J., J., concurred. No. 255. Appellate Third May 16,
[Civ. District. U. G. PETERSON et al., Respondents, v. ADRIEN CHAIX Appellants.
et al., Grapes—“About Contract Sale 250 Tons More or Less"— Crop.—Under Parol Evidence—Entire a written contract for the grapes sale “about 250 less, tons stipulated more price at the per $27.00 ton cash after delivery, grapes to qual- be of sound ity," parol or extrinsic evidence is not admissible to show that the sale was intended to crop include the grapes entire grown in vineyards of sellers, including 166 tons additional quantity specified. Ib.—Implied Agreement.—Though express there is no agreement purchase grapes, implies the law agreement by an pur- pay stipulated price chasers for all received quality named, nearly them of the and when 257 tons were ac- cepted, implies agreement the law accept any grapes in excess thereof. Rule Extrinsic Evidence—Exceptions.—Though, Id—General rule, a general appears where partly writing partly parol, and is terms, parol uncertain in its evidence stipulations were, show admissible to what construing parol uncertain contract admissible to show cir- made, etc., cumstances under which contract was yet neither applies implies of these rules where the with what the law thereof, certain, clear, definite, from its terms as complete to, unambiguous, it cannot be added which case varied or contradicted extrinsic evidence. *2 Id—Construction Code 1860 of the Civil Provisions.—Section circumstances, etc., is to be Code, parol as to the evidence of in with section application, restricted its so as to harmonize nego- code, supersede of that a all oral written contract Procedure, tiations, and also with section 1856 of the Code of Civil mistake, imperfection, invalidity a allowing or of the contract put by pleadings. be in issue the Introducing Ambiguity—“About”— not Id.—Terms Contract authority, that settled, terms “More is or.Less.”—It question, in less,” or used in “about” and “more previous ambiguity, extrinsic introduce no that to show what contemporaneous is admissible conversations refer by the contract does not to inde- meant their use when identify goods sold. pendent circumstances Superior judgment Court from APPEAL denying a new trial. County, and from an order Sonoma Seawell, Judge. Emmett opinion of the court. stated
The facts are Young, Oates, Appellants. and J. W. for E. B. Respondents. Leppo, R. J. rehearing petition plain- In their
CHIPMAN, J.P. memorandum did written not constitute urged tiffs agreement parties; between but of the whole resting in which an conditions, parol, were essential there an presents case “where instance thereof, and that part part only in part perform- and a entire, is a verbal writing,” parol testimony and hence is reduced ance complete agreement. We do not to establish admissible disposing is called for in discussion an extended think that may conceded, and as we contention. under- plaintiffs’ they admit, position that where the con- defendants’ stand merely incomplete memorandum, appears to be tract writing partly parol, extrinsic evidence partly to be stipulations were. show what mutual But admissible concerning such matters this is true v. Chain. written memorandum is silent or as to which terms are used import ambiguity uncertainty—i. e., which on their by face admit of doubt as to what the meant use. principle observed, namely, There is another implies writing the law whatever from a contract part much a which is therein ex contract as that pressed ; and to the extent that with that which law implies, is clear, complete, definite and cannot to, added varied or extrinsic A contradicted evidence. principle still further overlooked, namely, is not to be ex trinsic evidence is not admissible to show that a contract partly partly oral, written and if proposed the matter to be made of the contract such evidence is inconsistent writing. with the terms of We add still further salutary rule, recently given which has been careful extended discussion Hale court, this case Bros. Inc. v. Milliken, p. 344, Pac. ante, 365], and it competent construing this: While it is a contract to show subject the situation of parties, matter of the con *3 tending of the tract, contract, and acts as how it, show understood still this cannot done varying contradicting to the extent of a written certain, complete unambiguous. where such contract foregoing principles very The to be the law in are stated case, supported authorities, well reasoned cited of Faulk Wallpaper Co., Iowa, 169, Rep. ner v. Smith Am. St. [45 200], In 230, 55 N. W. that case the memorandum read as promise “On demand I follows: deliver the order of Eight (less twenty Fisher hundred per E. dollars cent F. discount), in wall paper, prices, good, clean, at wholesale my Street, assorted stock out of store on Fifth Moines, Des storage. Paper Wall No Lew Smith Iowa. Co.” de pleaded that, the date of order, fendant at acceptance by Fisher, price wholesale good, of its price wallpaper, and the which said clean, assorted paper at which said based, and to be delivered was order was accepted by, payee agreed to, was the defendant shown Fisher; forth on a card then that the upon, and set printed upon the card was prices then schedule parties to said order as the then wholesale upon between delivered, paper was to be and said at card prices part accompanied order, it, part as a and a of v. Chain. fixing price paper. of said contract the wholesale Defendant contract permitted prove that, was trial when the as- plaintiff’s parties, was made between the he handed the signor of wall- card, having printed price a thereon a list in the paper, paper mentioned he was to take the attached prices contract at the stated on the card. was in it. contract or referred part of the written to or made tending vary con- objected to, parties.. Defendant contract of the the written tradict constituting part admissible as the evidence was claimed that piece of though separate on a it was contract; that, altogether con- part a of and in fact but paper, still it was held that supreme court contract. The Iowa stituted but one admitting speaking In the evidence. the lower court erred “There is price,” the court said: “wholesale of the terms the card prices, set forth on schedule of claim that the of the written evidence, was to be introduced oversight by accident, mistake, tract, and was omitted objected presented. The evidence No such issue is fraud. change'in the terms of the contract. a material to would work price paper was to received at It shows that executed, and out- agreed upon when the contract written contract. It measured provisions of the side of the received under the written paper that should be amount of price, market when the written then wholesale contract paper amount of to be delivered under measured contract price at the time demand made wholesale by goods.” controversy sole relates here In the case agreed to receive. It is true the defendants grapes which agreement of defendants to receive as to the silent ques- did receive them and no grapes. But any of the implied agree- law would this. The as to tion arises *4 stipulated price grapes for all at the received pay to ment True, also, named. that quality by them grapes, but as all varieties of the bore the as to silent the. upon point dispute arose this the fact as no price and same as to the omission to state when So, also, immaterial. grapes were to be made or whence come. delivery to controversy, dispute the sole the actual matter to Reduced by parol prove testimony could plaintiffs that whether agreed plaintiffs’ crop, had to defendants receive to grapes 166 tons the “250 tons more receive excess of less,” specified in the is not written memorandum. repeat point this hereto- observations fore made. opinion We are still extrinsic evidence that was not materially admissible to add men- tioned in invoked re- principle memorandum. spondents, when rightly them no relief. applied, affords opinion herein,
For the reasons stated former and our judgment and order are reversed. Hart, J., Burnett, J., and concurred. following opinion is the to, former above referred February 20,
rendered 1907: P. a CHIPMAN, Action upon J. contract for the sale grapes. certain The cause was tried the court without jury plaintiffs judgment, had from which from denying their order motion for new appeal. trial defendants complaint It is averred in September 22, that plaintiffs entered into a whereby contract with defendants agreed plaintiffs to sell and deliver to defendants winery in Rosa, agreed Santa buy defendants crop grapes receive, grown by plaintiffs owned and vineyards city, said on their near for season of 1902, grapes quality of sound not required said to be but to any specified percentage sugar, tain and that defendants plaintiffs pay same, cash on delivery, per ton; prior sum of $27 that October plaintiffs defendants, delivered to said grapes 256.817-1000 tons of said and defendants then and duly accepted there received and the same under said con- amounting tract, $6,934.05; ready willing to deliver the crop balance their said to defendants, gave plaintiffs but defendants they, notice that defendants, accept “would not receive or pay any more of the said crop and then and there refused to or accept any receive grapes”; more of said there remained undelivered of crop quality said 166.155-1000 tons of called for contract; said after defendants’ refusal, said to wit, App.—34
5 Cal. *5 Peterson advantage 28, plaintiffs said October sold to the best mentioned), remaining grapes (except ten tons hereinafter amounting receiving per ton, of therefor the sum $20 aggregate $3,123.10, to that difference between said and paid $1,093.08; agreed by sum and sum defendants to of tons undelivered to defendants ten there remained by refusal became grapes which reason of said defendants’ decayed and valueless. them, delivery to
Defendants answer admitted the their alleged agreeably tons, to the of 239.291-1000 but August prior to to that 17.495-1000tons delivered defendants quality, were of inferior for which defendants allege they value, which pay the reasonable market to $6,778.30, admit an indebtedness $317.43, was and is and allege they prior to plaintiffs tendered sum action, plaintiffs refused this and commencement willingness pay same, present and aver receive allega- deny specifically defendants plaintiffs; said sum to except complaint as to the above admissions. tions findings in accordance with facts set court made agree- complaint that “no and found contract forth in the (i. e., alleged in than the one above mentioned ment other plaintiffs made between defendants complaint) ever crop grapes plaintiffs’ said purchase the sale also found that tender 1902.” The for the season finding by defendants, as which matter made had been any is not now claimed as it tender dismissed, by defendants. made opening plain- statement counsel appeared during examination of the called witness first tiffs by the written contract was entered into that a acting through Hood, admittedly one defendants parties, however, claiming that it was but agent, plaintiffs, alleged This instrument bears date as part of the contract. complaint, and is follows: pleaded Sept. 22nd, Rosa, 1902. “Santa ($1.00) dollar, paid hand, inme of one “In consideration & BERNARD at CHAIX deliver promise I sell Rosa, Cal., about tons winery at Santa Hood’s G-. James stipulated price at the grapes, tons more or less delivery. after cash per ton $27.00 Chain. than--(33) not—leas p£ quality, sound “Grapes to CQnt’of-s&garr- Twcnty-Twe-gcr
“Seller, —PETERSON BROS. *6 “Buyer, HOOD.” —JAMES G. contract as erased was so erased The last clause shown the signing. before per- objection plaintiffs
Over the defendants, toas testimony mitted introduce of several witnesses leading signing above up circumstances to the of the include memorandum; to show intended to that the sale was vineyards; grown their crop upon the entire each; explaining grapes the varieties of tons and estimated subject sugar test; that the were not to to the be short, permitted testify witnesses were to all conversa- relating place tions and details to the transaction that took sign- during negotiations contemporaneously and with the ing being Upon objections interposed of the contract. understanding argument, “My after is the court remarked: precedent that all these matters of the conversation are merged contract, in a written but under section of the you of Civil Procedure I permit question Code will your exception.” objections ruling can take ran much, to all of testimony, this line of which there was. present principal question Respondents’ before us. view writing of the matter as stated the brief is that “the September 22d is a commercial memorandum, and does fully all set forth of the contract of sale and purport grapes,” and hence at- purchase of the circumstances may inquired be tending the into. Procedure, of Civil which Code reliance Section proper as follows: “For the construction of placed, reads made, under which it instrument, the circumstances in- an subject of the of the instrument, and cluding the situation may shown, also be so it, judge that the parties of the language of those whose position he to inter- placed in applicable every is not to be read as section This pret.” before the interpretation. come court for and must read in limitations connection has its with give To of our code. literal provisions and uni- other bring would it into application conflict with direct sec- versal Procedure, provides: of Civil 1856, Code “When tion agreement writing "an been reduced the terms parties, containing terms, it is to be all those considered repre- and therefore there can between sentatives, interest, or successors in of the terms no evidence agreement writing, ex- other than the contents of the cept imperfec- following eases: 1. a mistake or Where writing tion put of the 2. Where pleadings; issue validity agreement dispute. But is the fact in this section does circum- not exclude other evidence of the agreement stances under which made, or to relates, eighteen sixty, il as defined in section hundred and or explain illegality ambiguity, extrinsic or to establish present allégation proof fraud.” In the ease there is no of mistake, invalidity or of fraud.
Section Code, Civil harmonized must also be read and with section Code"of “The Civil Procedure. It reads: execution of a contract in writing, requires whether the law it to be written or not, supersedes negotiations all the oral stipulations concerning preceded its matter which or accom- ' *7 panied the execution of the instrument.” From and these might other sections which cited, plain it be is that section application. is to be in restricted its 221, Fresno & Co., said in v. C. I. The court Balfour language be, “If 876, Pac. of the contract 225, 877]: [41 susceptible plain unambiguous, of contends, and and defendant objection good, evi construction, then the and the was but one language employed If, properly excluded. dence however, interpretations of fairly susceptible of either one the two ordinary doing violence to its usual and for without contended an am construction, rule of then import, or some established may be resorted biguity arises, which extrinsic evidence allowing parol evi explaining. This is not purpose of contract, altering the or varying of or purpose for. dence upon its lan construction sense and putting of different for the naturally bear, but guage which it from that would lan which the showing purpose of the circumstances according to intention applying it guage used, 1860, and Proc., sec. (Citing Civ. parties.” Code eases.) 641], W. it Pugh, 110 Wis. N.
In v. Johnson [85 sur- testimony the circumstances broadly of contended that making leading of a written contract rounding up to the changing vary- of purpose not for the always admissible, of ing instrument, purpose of the written but for the the terms of putting the in circumstances possession so,” parties “Not the contract. the time contract, ambiguity in said the is no court. “Where there subject either in applied its literal sense when it thereof, speak entirely it must extrinsic unaided itself ambiguity exist, matters. Where evidence such then does the circumstances under which "the contract made proper to enable in light the court to read the thereof instrument parties intended, sense the if can done without violence to the rules of law.” meaning light may section 1860 be discovered foregoing decisions. Before resort extrin can be had to sic language evidence employed in the contract must not “fairly susceptible either one of interpreta the two for,” tions contended but this doing must be “without violence to its ordinary usual and import,” and must also be “with it doing out violence to . . . some established rule construc (Balfour tion.” Co., supra.) Fresno L. I. & It is of the officeof construction add to the contract or take from it, but it is to ascertain what the intended what have said. If there ambiguity be no it must speak for itself. It is true, provided section Code Procedure, Civil although writing “the terms aof are presumed have been primary general used ac ceptation,” still evidence is admissible show “that a local, technical peculiar or otherwise signification, so used particular understood instance, in which agreement case the accordingly.” be construed must Such of Higgins was the case Co., v. Cal. Petroleum etc. 120 Cal. 1080], by respondents, Pac. cited where the terms used it were “short It was there held that tons.” is not local, technical, expressly should indicate a that the contract peculiar signification, but “that be shown *8 language technical, sense, is used in peculiar that the local or merely that evidence what introduced show meaning language is, ease, when is so how such used.” That change ever, was not intended the rules mentioned. above in sections 1860 and 1861 apply rules stated ‘donot where The ambiguity in the contract are are the terms used free from technical, peculiar signification. in a local or not used 1856, Procedure, rule code enunciated section Code Civil frequently by supreme our court, been enforced was has Cal. [5 534 v. Chain. (Goldman the code. being incorporated into rule before Romer, 82 256. of later cases: Schurtz v. Davis, 23 Cal. See v. Apfield, West v. 86 Cal. 118]; Coast L. Co. 474, Pac. Cal. [23 ; Pac. Fisher, Beall 335, ; 568, Pac. [30 773] 993] [24 construing 437, 113 Cal. Pac. Poole, 702], and also McDonald v. [45 jurisdic Among in other Code.) cases c. Civ. se tions the they come following may profit; consulted with no finally proposition that where there is simple to the down uncertainty for construction: Hart v. of sense is no room there Hart, Fawhner Smith W. P. 890]; 117 Wis. N. W. [94 Rep. 230, 55 N. W. If it Co., Iowa, 169, Am. St. 200]. [45 incomplete, appear it must that contract is so be claimed complete is admissible to upon inspection parol before evidence with and not contra it, such evidence must be consistent 174 N. Y. Am. dictory (Brantingham of it. v. Huff, Ferguson Manhattan Rep. 545, 620]; 66 N. E. C. Co. v. T. St. Co., 791.) 118 Fed. given
In ease which here rise to terms any controversy are the terms “about” and “more or less” applied quantity grapes sugar to the sold. The test out, appears upon was stricken and it so the face of the con- uncertainty plaintiffs agreed tract. There is no that the place grapes 250 tons of at a named and sell and deliver per buyer pay delivery, $27 was to ton that material quality. question to be of sound grapes meaning parties as to the arisen between has single question quantity sold and tract is not admitted show Parol delivered. “more or less” had a local “about” and or tech- the terms signification peculiar and were so under- nical or otherwise instance, particular but the evidence was intro- in the stood agreement that the prove duced to grown grapes by all buyer receive seller should witnesses; vineyards mentioned that when the several vineyards discussion, matter was from 250 plaintiffs tons, de- estimate and the it would make difference as to the amount, said fendants grapes all the Plain- had. would take by parol show that the made unsuccessful effort tiffs among buyers custom “more or less” had and sellers terms peculiar signification a local and grapes meant of wine grown seller. objected Defendants to the *9 v. .Chaix. It objection testimony, however, was sustained. and the occurring parties seems to us that the conversations when vines, estimating the to be on quantity were thought, were to regarded light opinions should be plain- quantity form safe to name the contract some not as willing agree and deliver and to sell tiffs a matter important itself. So sellers, by the grapes grown buyers agreed to take all the expression tho have found quantity, should regardless of am- introducing extrinsic by some directly or either 'now having expressed, cannot been so biguity, and not tons, quantity is parol. This additional by added thereto in the greater quantity than stated sixty per cent sug- large Possibly excess been had this tract the sellers. have buyers would during gested these conversations quantity. difference as to say that it made no hesitated “more less” be, “about” and terms this However courts way into contracts and frequently found their no am- disagreement introduce held that have without previous or contem- that extrinsic evidence biguity and what the is not admissible show poraneous conversations face contract on its use, unless the meant parties to iden- independent circumstances to some makes reference tify goods sold. 168. Brawley States, 96 U. S.
Both cite v. United lays down leading has been often cited. It case and This is construction guidance of courts certain rules was to deliver In that case the of similar contracts. contract quality, of army sound, first post “880 cords at a certain determined wood, less, more as shall be merchantable regular sup- for the necessary, post-commander, quarter-master’s appeared department that the ply,” etc. quantity required made an and had ac- had estimate cordingly cords; opened for 880 advertised bids were April 15, 1871, May and the contract was awarded 6th, but though day dated not executed until June 14th. post-commander plaintiff, 18th the notified June About wood would required 40 cords of claimant, that but and' hauling any government yard. more to the his forbade He great expense, before the however, had, signed, gone forward and cut the full and hauled it yard. The court held that “the substantial en- near to Petekson Chais. gagement was what determined to be to furnish should be necessary by post-commander regular supply for for the year,” plaintiff opinion in his action. The failed valuable for its rules concise and accurate statement of the *10 governing court, by similar contracts. the Justice Said Mr. Bradley: goods
“Where a contract is made to sell furnish certain or by independent identified as an entire circumstances, such deposited lot in manu- warehouse, a certain all that or by factured that establishment, or the vendor in certain may be shipped by agent ves- correspondent his or in certain sels, and the quantity qualification is named with the ’ the, or ‘about,' import, or less, ‘more or words of like applies naming tract specific lot; quan- the and the the but, tity regarded warranty, is not inas the nature of a only as an estimate probable amount, of the reference good making required party faith is all that is the analogous In cases, governing it. such rule is somewhat applied description lands, is where natural boundaries and monuments control courses and dis- quantity. tances and estimates of independent
“But when such circumstances are referred to, engagement goods and the to furnish quality of a certain or amount, quantity specified character to a certain is ma- terial, governs qualify- contract. The addition of ing words, less,’ ‘about,’ like, cases, ‘more or and the in such against only purpose providing for accidental varia- slight arising unimportant tions from excesses or defi- weight. or number, ciencies measure “If, however, qualifying supplemented by words are stipulations give other conditions which them a broader scope or a more extensive significancy, then the contract is governed by stipulations such added As, conditions. many to furnish so of wheat, if bushels it more or according party receiving what the less, require it shall mill, governed use of his then the contract is for not named, quantity nor quantity slight with by the variations, unimportant receiving but what the party shall mill; of his use and the variation require from the depend upon will named his quantity require- discretion and long good ments, so as he acts faith. So where a manu- price to deliver at a certain facturer contracts all the articles May, v. Chain. space ‘say
he shall factory years, make in his of two month,’ gallons naphtha per thousand to hundred twelve designation in- qualified ability determinate word ‘say,’ but the fair discretion always good the manufacturer, provided he acts faith. . . . previous negotiations
“Reference is made which led to the to the claimant, the bid of the fact early that the contract was him on his awarded to bid and that, on expectation quan- faith tity named wanted, eight would be he had cut the hundred eighty signed. cords of wood before the contract was
“All this is irrelevant matter. The written contract merged previous negotiations, presumed, law, and is express understanding the final parties. If the con- express tract did not agreement, true was the claim- folly signed governed ant’s to have it. The court cannot be by any such outside considerations. Previous and contem- *11 porary very transactions facts be properly into taken subject ascertain consideration to the matter of a contract parties may in which particular and the sense the have used or modify plain language not to alter terms, but the they have used.” importance question of
The the and the earnest contention respondent jus- of that the lower court ruled correctly is our for a still further of tification notice of many some the cases has been the matter considered. in which In Shickle v. Co., V. Iron 84 opinion, H. & Mo. the as ren- Chotean 10 appeals, App. in court of Mo. dered the adopted. read: The contract of proposal
“Your four hundred tons, less, more or of consisting scrap, one, wrought three-eighth one-half and gas scrap, and pipes blacksmith lot of plate from Southern scrap, your other as Mr. Fusz, twenty- shown Hotel, at per yard, ton in is accepted. net our two dollars You can hauling your same at convenience,” commence said: “Defendant admitted purchase and re- price ceipt of the iron at the mentioned and nonpayment by way claimed; but counterclaim alleged balance performance was delivered iron said contract it agreed claimed that was above that de- scrap to have iron in plaintiff’s were yard. fendants ‘‘ terms at the time the was offered to show that Evidence containing yard agreed upon parties were were defendants quantity, and scrap and made estimates prove offered to that it was then inad- scrap have all the this evidence iron.” court held reported the court said: App., missible. As in Mo. never contract are words ‘more or less’
“The written from the permit departure small understood to more than a meaning being named in the contract. Such in a written affixed law or less’ to the words ‘more ambiguity tract, not create such the use such words does words explanation. The parol as will let in the contract not as mere words taken, or less’ are to ‘400 tons more defining limiting and words of contract expectation, but as Levison, P. Div. (Morris v. 1 C. sold. quantity to be 275.) The construction Snaith, Q. B. 155; Leeming has effect of the defendant put upon tfie cannot words ‘400 tons.’ This erasing from the contract the any instru- interpreting settled, It written done. is well meaning will, if ment, put shall be it that such a parts.” give to all possible, effect its Winsor, (83 Mass.), 1 Allen In Cabot v. Co. for Winsor Jr. & account to Nath’l follows: “Sold (500) bundles, more or Esq., hundred five Stephen Cabot, bag.” appeared in bags per 10c. gunny
less, object defendant knew that that both ship “Hesperus,” fill the then was to purchase purchase Wharf, and that at the India time lying at bundles what number of would needed uncertain actually Only 200 bundles were taken purpose. for that being proved all that “Hesperus,” that to be board of remainder, ship; bundles, about 275 fill *12 Defendants claimed wharf. that under the on the left were bundles, or to have more or less than they were contract might reasonably be found to fill as number, election; that, they and as did not re- at their or ship, the for the bundles that purpose, and any more than quire any received more than number, fact never they in pay for 200. to only bound at the trial that there held latent am- it But contract, and that its construction for the the in biguity par- prove parol to offered that both Defendants court. differently, it was not the contract and that ties understood enough ship; fill to more to intended cover than plaintiff be- acts of the prove offered to the declarations and contract, making of, at the time after fore, showing it; but purpose for that he so construed judge appeal supreme excluded the evidence. On judicial said:
“We perceive any ground are unable to which it can any exceptions be held that this contract falls within to the familiar and well-established rule which excludes parol agreements in the construction of the written of parties. language expressed it is not technical, alleged any peculiar nor is it to or have local signification, to any or been used with reference cus- tom usage, vary change which would its natural and ordinary meaning. Nor ren- are the terms uncertain or facts, dered doubtful reference to extrinsic so ambiguity. create a latent less,’" ‘more or words given which seem have rise the contention between parties, plain, ordinary have a popular signification, and are relating often used in personal contracts both to real and estate.” speaking
After sales especially merchandise, large quantities, where these are frequently terms used specific connection with the quantity contract, named the court said: “But cases, parol such evidence is not admitted to show that buy intended to and sell quantity a different or amount from the writ- that stated agreement. On contrary, ten is held a to be contract specified; the sale of the amount effect permit words ‘more or less’ the vendor delivery his fulfill of so much as reason- ably fairly compliance be held be a with the delivery after due allowance an excess or short arising ordinary usual and causes, prevent from weight estimate or number accurate articles It was held that the readiness to sold.” deliver 475 bundles “a compliance, and that per variation of was sufficient five large quantity was not such a deficiency in so cent as to the fair outside of and reasonable fall limit short de- livery.”
540 [5 v. Chain. Creighton
In Comstock, v. 27 548, Ohio St. the sale timber “supposed twenty-three to be thousand feet white pine timber, less, laying more or now the river imme- diately Creighton’s logway said River at the Ohio ’’ Columbus. delivery A of 16,000 feet was insuffi- held to be cient and great deficiency involved too a variation to be brought meaning within the term less.” “more or Rea, 48 218,
In Holland v. Mich. N. W. the court 167], [12 satisfy 473 M feet of lumber would not held that a call for *500 See, also, rule “more or less.” M feet stated in Kirwan v. Camp Co., 12 Packing App. 1, Ind. 536], Van N. E. Respondent Day Cross, 595. In cites the case of 59 Tex. brands, that case was of cattle of sale all the certain 10,000 head, less, except more or a certain number not cattle of it was certain brands. The court held that guaranty as marks and to the number of the cattle said brands, of the marks and brands, but a contract the sale good faith, that the bound to exercise and' seller taking them from care, energy cattle, skill to collect the range at the they were accustomed run where controlling the marks feature was of the contract. Here the indicating designated number as what and brands and not the was sold. Rosenthal, 388, 41 89 Ill. Am. Dec. Tilden v.
In agreed to deliver on certain defendant written less, good average fat cattle ... more or day head, "262 are the known as the pounds, cattle hundred thirteen being vicinity now fed Bishop lot, Coun McCoy and head, tendered 178 Plaintiffs which de Bluffs, Iowa.” cil brought receive and suit for refused fendants phrase that the “more or less” held number. this trifling cover such deficiencies in was used ordinary might caused casualties death number deficiency “the court, nearly “But,” said or loss. number contracted for. We are whole one-third person when a contracts for a lot say prepared accept shall containing 262 head he 178.” See cases cattle Sales, 682 Benjamin seq. section et For dis collected Belknap Sealey, see 14 N. in sale Y. of rule land cussion Hill, Am. Dec. Kern.) note; 67 Harrell v. (4 Dec. 102, Am. Ark. 202. parte Ex May, 1907.] Haase.
Appellants point make no their brief as the 17 tons allege for which the market pay *14 question liability value. of The sole discussed relates to the defendants refused for the tons of accept. Our is accepting conclusion that in tons de- the 256.817 fendants price, became liable but therefor at the contract were not accept bound tendered the excess and refused defendants. judgment and order are reversed.
Hart, J., Burnett, J., concurred. 47. Appellate May 16, No. Third
[Crim. District. Ex HENRY HAASE, Corpus. Parte on Habeas Corpus—Conviction upon Guilty Burglary Habeas Plea Degree—Determination Degree—Jurisdiction—Pre- First corpus petition a habeas sumption—Upon upon for the attack a judgment of superior upon plea conviction court guilty burglary degree every in the first collateral, intendment judgment. Though that, favor of the it case, seems such right substantial would defendant be invaded failure yet degree, only question the court to determine upon corpus jurisdiction; habeas as to and if supposed court degree, should determine it must be affirmatively presumed, the record contrary, where does show the degree determined the sufficient evidence not- plea. withstanding corpus writ of HEARING on habeas addressed the war- holding prison, petitioner judgment den of the state Superior County. of conviction San Bernardino Court Judge. Bledsoe, P.B. opinion facts stated in the are court. McKisick,
R. T. Petitioner. Attorney General, Respondent. U. S. Webb,