*1 176
Furthermore, it has been held that defects certificates of may legislation. (Stanton tax v. sales be cured retroactive Hotchkiss, ; Townsend, supra; 157 652 P. Fox Cal. v. [108 864] Fulgham, Bank Lemoore 234 ; v. 151 Cal. P. Baird [90 936] ; Osborn, v. 560 Monroe, Cal. P. Carter v. 352] 608].) Cal. 620 P. provisions curative ordinance itself that purpose. serve
For the I foregoing reasons think should be affirmed. J.,
Edmonds, concurred. F. 16732. In Bank. Nov. No. [S. 1942.] C. ROY, SALISBURY, A. Respondent, RAYMOND v.
Executor, etc., Appellant. *2 Raymond pro. Salisbury per., Joseph Prior C. n Appellant. Dobrzensky & Milton Fitzgerald, Beardsley Abbott W. Respondent. — *3 CARTER, Defendant, J. as executor of the estate Drucks, money judg- from deceased, appeals Edward S. probate plaintiff rejected ment claim. upon favor of of Palanka Kennels and a breeder Plaintiff, owner dogs, of that pup and Doberman Pinscher sold a trainer of decedent, appears Dr. to the Drucks. breed named Mike employed great had a for and decedent affection Mike usual plaintiff plaintiff’s train him. knew that to Decedent boarding Doberman was caring for and for Pinschers rate keep- paid plaintiff to for per month, having $20 that amount The trial found ing Mike occasions. court on several plaintiff, and which oral between decedent contract estate, against claim decedent’s was plaintiff’s basis of follows: ' for to care Drucks ever became unable “That if said arranged said die, he had dog, he should or, if said housed, plaintiff to be fed be delivered to would “MIKE” dog’s remainder of said for plaintiff and eared caring housing, feeding and usual rate for life, plaintiff’s at per month, $20.00 viz., the rate of dogs, at for such agreed pay, payable to promised and Drucks said sum said month, said neither dog was and each of at the end 1938, 30, On December by plaintiff.” exhibited to sold nor be hospital. Mike was de- being ill was taken to decedent liver to plaintiff’s ed kennels, and ever since said date has kept been by plaintiff according and cared for terms of the contract. January Decedent to returned his home on 5, 1939, 9, 30, and died on January 1939. On December 1938, expectancy eight life years; Mike’s of the rate per $20 equals $1,920. to applied period month of time being rejected, Plaintiff’s claim the estate he com- menced this action and therein on entered January 20, 1941, awarding him period $480 for the from 30, 1938, 31, respect December to December 1940. With expectancy $1,440 remainder of Mike’s the sum life of paid was awarded which was be at the rate per $20 of day commencing month of month on last each in Janu- ary, 1941, “pay or that defendant into court a sum executor money monthly $20.00 of sufficient to meet the installments of housing, feeding caring each for ‘MIKE’ said dog, accruing during the lifetime of said between the 31st expec- day December, 1940, expiration of and the said life tancy ‘MIKE,’ eight herein, viz., years of said as found 1938, $1,440.00, after December or the sum total paid day the last $20.00 to be over to of each and every during dog ‘MIKE,’ com- month the lifetime said mencing January, 1941, continuing with the month of dog ‘MIKE’ during the lifetime of said until the said sum $1,440.00 fully expended.” has been Disregarding conflicts there is sufficient evidence to findings support respect to the existence of the plaintiff’s employees contract. One of testified that in June July, 1938, plaintiff’s decedent at called kennels and stated “ to plaintiffs: ‘My failing. anything health is In the event happen die, brought to me or I should Mike will be stay to the kennel and I him want here be taken care fed, and be not show him and not to to sell work ” Roy him,’ (plaintiff) said, ‘Yes, I Mr. will do that.’ The same witness related other conversations which dece dent that he wanted to be sure Mike stated would cared *4 days Thanksgiving for and few after “The Doctor came ‘I crying. says, come back from ceme he was ITe and ’ visit,’ Roy said, tery. said, my ‘It be last and He will Mr. you Doctor ‘Doctor, you right, get all will well.’ will be said, sympathy ‘I didn’t come here Drucks know better. I business,’ said, agree charity. strictly and he ‘so the It is stands,' they shook it.” Mike still hands ment about making said he Bollinger testified that decedent had Mr. arrangements for Mike’s care if he was to care unable him. Mrs. McIntosh testified that he the decedent told her arrangements made dog had with care for to “in case the Doctor was unable to care of in the take him or substantially event of his to death.” Mr. McIntosh testified the same effect. There is evidence that had after decedent Mike, purchased paid per he for his $20 had month care plaintiff. regard to
With commencement of under contract, Repose, Mr. a friend of decedent, testified that the latter told him “if anything happened, Roy (plain tiff) would take dog care of the dog and to take to out the kennels there Roy dog.” would look after the Repose occasionally dog to the attended for decedent. At the time decedent was taken hospital to the he had been bed days, ridden for five Hanavan, Mabel a close friend who was at home, decedent’s his told Repose to take Mike plaintiff’s to kennels. spoke That was done. Decedent dog after he returned hospital, from the appears but it requested nowhere that he brought that Mike be home. As far appears, as arrangement no other plain existed between tiff in regard and decedent taking to the of Mike to the ken nels for his care. These circumstances to were sufficient justify Repose dog the inference that when delivered the to the kennels it request, was in accordance with decedent’s pursuant and was terms of the latter’s contract with plaintiff. physical coupled Decedent’s condition with his hospital removal to the created a situation where he was Mike, having arrange unable care for made other no respect dog, may ment in to the of the assumed care be delivery kennels was accordance plaintiff. agreement with his is reasonable to infer during knew Mike at kennels time that decedent returning from hospital home after and at he was death, very time of inasmuch he was his as much attached during that time. So far and discussed regard comment in discloses he made no to Mike’s record absence. urges unenforceable contract was
Defendant writing, because it was not in and came within the statute providing an its terms frauds during promisor the lifetime of performed Proc., 1973(6); Code, writing. (Code Civ. Civ. be in must § he claims that the contract 1624(6).) In that connection §
Í81 contemplated by parties the plaintiff was one was only to board Mike in the of event death and refers decedent’s to evidence that of spoke approaching decedent death in the forming transactions the basis for the contract. But Bollinger, testifying be noted that witness after that had dog decedent said if that he were unable to care the he proper place, Q. wanted cared for at a also testified: you (decedent) “When he said that know he don’t what referring unable, when he said he was whether it was sickness, away going death or from ? here A. He was refer- ring to his ill health. say anything expect- didn’t He about ing arrange- to die. He he was in ill health making said Roy ments with Mr. if he was to take of unable care the dog.” The evidence from witnesses several was to the effect dog that the be if boarded the decedent was unable or should die. for it appears to care It thus that decedent contingencies two had in mind alternatives as stated by contract exist, namely, the found court that by plaintiff die, was to be boarded if decedent should ifor he were unable to for it of care because It is illness. appropriate point to observe at this also that defendant con- fatally (discussed tends that the contract uncertain later herein). true then section of the If be Civil Code pertinent. provides: uncertainty “In cases of not 're- by preceding language moved rules, of a contract interpreted strongly against should be party most who uncertainty promisor presumed caused the to exist. The party.” be such One of preceding rules to which reference is made is “If promise the terms in any respect are ambigu- uncertain, interpreted it must ous in the sense in which promisor believed, making at time of it, (Civ. Code, it.” promisee 1649.) understood Merely § be- spoke of impending death decedent cause connection with not necessarily does transaction establish the con- only death was the sense in which tingency of decedent be- promise. understood the We lieved that have there- two with the by the contract alternatives as fore found court. .. we turn to that in mind issue of the
With statute of applicable rules There are to this several frauds. case which Conceding if judgment. support pro the sole will for the care of contract was vision death, it be a would decedent’s contract not to tie event promisor, and during performed the lifetime decedent (see Hagan v. condemned statute of frauds therefore 562]); 1915E, L.R.A. but McNary, 170 P. Cal. If the we have seen that death was not the sole alternative. terms of a contract are that it such admits during stat promisor, the lifetime of the it is not within the utory provision That follows here involved. conclusion interpretation analogy accepted from the of the statute *6 “by a not provision that contract that its terms is frauds (Code writing. performed year” within a must be in to be be Proe., 1973(1) ; Code, 1624(d).) It is Civ. Civ. § § wording provisions two identical noted that the the is ex period of time involved. An oral contract cept as being performed year a capable of within is which is not or, recently by this by the stated court condemned statute 184, Furer, 16 Cal.2d Hollywood Equipment M. P. Co. v. “It that oral 187 : is well settled contracts P.2d 299] performed to be within by the statute because not invalidated within only performed cannot be year a include those Edition, Contracts, (2 Revised period. Williston that 1441.) promise may by its though a 495, p. Even § year, yet it not inhibited a performed be within terms may it be. con possibility if a there is the statute interpre reasonable language whose must contain tract itself performed cannot be intention a clear tation shows its proof terms subject unless year. within (See, period.” within said performance incapable it is ques 857.) Manifestly the contract here 12 also, Cal.Jur. of decedent. If the lifetime within performed tion be could lifetime, during Mike his for care he became unable might performance performable and would be contract dog might be die because the his death completed before be the con care and requiring further decedent, thus no fore stated completely performed. It was tract would have been 409, Cal.App.2d Bank, 30 Security-First Nat. v. in Gaskins guardian with involving contract 681], P.2d minor children with for the latter’s care incompetent to of an 1624(1): reference to section assuming the contract
“It also be said even could writing, guardian perform- its original was not with the beyond year. In postponed one not-by terms ance was its care for minor chil- contract was to bar the case at minority, payment during incompetent their with dren of youngest majority. Obviously attained when made to be might fully year performed such contract be from one execution, instance, as, would be the case the date its ’’ year. died within first all minor children have (See 184.) also 27 J.C.
However, portion contends defendant that if a anof within oral contract is invalid because statute frauds unenforceable, citing the entire contract Feed, Fuller v. dog Cal. here to have the cared inseparable for in of decedent’s event death was from the term that similar care if given was to be decedent was unable dog.‘That any to care for the rule cannot application have here upon because even if the dog alternatives which the boarded, is, to be or inability death care inseparable indivisible, are treated as still contract performed during could decedent’s lifetime. If decedent became unable to care for the before his death and by plaintiff was boarded died but before the death of de cedent, no required, there would be further provision regard contingency in the event of death operative. would never become part Where one capable contract is of performance specified, within the time thus not statute, performance may within the and such *7 part constitute also a of the other of the contract statute, which is within may the then the contract not Furthermore, condemned. a contract prom where contains two alternative, in ises which the being merely are rather than divisible, one of which is within the statute of frauds and not, recovery may the other be had for a breach of the latter. (See Ward, Ward v. 94 275 853]; Colo. Canister P.2d Co. [30 Selick, Inc., 312, v. & denied, Wood 73 F.2d certiorari 296 U.S. 101, 113, 590 ; 703; S.Ct. 80 L.Ed. 25 R.C.L. 27 C.J. [56 417] 318.) stipulates question The contract in “if that said Drucks or, dog, ever became unable if to care for said he should die” delivered for boarding, Mike would be to “for the dog’s Obviously, promises remainder of said life.” the were in alternative in the no event was the contract to extend beyond for life. affection Mike and Mike’s Decedent’s the other circumstances herein narrated indicate that he desired safeguarded if were give that Mike’s welfare be he unable to protection himself. All decedent desired would be ac by if complished said contract he became unable to care for death, inability the before his continued as
184 thereafter, his as the up in the instant case to death and
did
dog.
during the lifetime
the
result of his death
fatally un
the contract is
contends
Defendant
certain,
particularly to
clause “If said Drucks
referring
dog.”
position
for
unable
care
said
That
become
in Mc
principle
It is fundamental
untenable.
stated
Co., 190
:
Frawley
549
P.
546,
Illmoil v.
Motor
Cal.
971]
[213
“
against
‘The
leans
the destruction
law does
favor but
will,
feasible,
uncertainty; and
if
of contracts because of
into
agreements
carry
construe
as to
effect the reasonable
so
” (See,
parties
intentions of the
if that can be ascertained.’
Co.,
also,
Code, 1653;
Seidenberg,
Civ.
&
132
v.
S.
§
Sutliff
Meyers Nolan,
Cal. 63
131, 469];
Cal.App.2d
P.
v.
18
[64
;
Lindsey,
Cal.App.
319
v.
129
408
P.2d
Pease
1216]
[18
;
Reid-Avery Co.,
89 Cal.App.
P.2d
Noble v.
717]
341].)
Code,
Also,
P.
the Civil
adverting to section
by
cases
not removed
rules stated
uncertainty
code,
language
sections 1635 to
of that
contract
interpreted
party
strongly
should be
most
who
uncertainty
exist,
promisor
presumed
caused
party.
Prom decedent’s affection
be such
with the transac
his
his illness in connection
discussion of
testimony
Bollinger
together
heretofore men
tion
that the
illness in mind with reference to
tioned
decedent had
dog,
justified
concluding
care of
the trial court was
contemplated
physical incapacity.
only
inability
the.
Not
decedent bedridden and
no condition to care
was the
hospital when Mike
dog, but
taken to the
was taken
he was
kennels:
out that the evidence was
pointed
We have heretofore
Mike
the kennels
sufficient
establish that
was delivered to
being
parties
That
the contract.
true
the terms of
under
interpretation
contract
placed
own conduct have
their
inability
of decedent constituted
therein
illness
uncertainty.
any question of
removes
mentioned and
per
placed upon
parties
contract
construction
practical
recognizes that -the
construction
and the law
suasive
*8
(Long
cogent
intent.
Beach
by them
of their
made
is
evidence
Co.,
Drug
Drug
The contract
community
wife,
property
plaintiff
was
and his
made,
was deliv
Elizabeth. After the contract was
death,
kennels,
ered
decedent’s
to the
and six months after
following
Elizabeth
instrument:
executed the
“July 8,
...
to$1
1939. In consideration for
sum of
hereby agree
I
Roy,
paid
my
me
C. A.
hand
husband
against
(No.
S.
the claim
of Edward
Drucks
Estate
Co.)
‘Mike’
on account
the Doberman
Alameda
proceeds
my
all
separate property
is the
thereof
ROY.
husband,
Roy.
ELIZABETH
(Signed)
C. A.
MRS.
Roy.’’
Wife of C. A.
At the trial
Roy testified,
Mrs.
objection
over defendant’s
(his
denied),
motion to strike was also
that decedent ac
quired
plaintiff
Mike from
and he
kennels;
was trained at the
she also testified as
paid
amount
training,
such
and the conversation on which the contract between decedent
was
urges
based. Defendant
Roy
Mrs.
incompetent as a Avitnessunder Code of Civil Procedure sec
1880(3)
tion
providing
person
cannot be a Avitnesswho
a party
assignor
is
or
party
action,
an
person
or
whose behalf
prosecuted
an action
against
an executor
upon a
claim
demand
the estate of a deceased
person
any
as to
matter
fact occurring
before the death
of decedent. It
contended
virtue of the above
Mrs.
instrument,
Roy
the assignor of
community
her
property
rights
interest
under the contract. We believe
that the case of Perkins v. Sunset
& Tel. Co.,
Tel.
186' relinquished had to his accrued, husband wife
action had action. contended damage in Defendant his all interest a cause action assignment an of of not be could that there replied page 720: personal injuries, this court at to which injured universally recognized a that one “It is rule who such tort assign growing claim out of personally may not a every authority there to the effect that almost but is some Cooper, 109 (Rued assignable. v. property is other kind of 98].) However, the found here Pac. court Cal. [682] [34 of assignment relinquishment all the husband’s not an a but as community claim to remission property. such fur- If a operate as ther action would accretions cause before of estate, separate property into the transmutation wife’s of not be attained why no result coulcl see reason the same we ex- came into by same means the cause action after of to find with proper istence. was therefore for the court plaintiffs reference made after February 8, (Emphasis 1906.” the accident before added.) in ease that the finding While no the instant there is quoted relinquishment than an above instrument is a rather assignment, readily susceptible of that construction inasmuch as it chose in action here involved states that the separate property” plaintiff. purport It does not “is present transfer, is, Rather, a it is assignment. an to be recognition sep- property an as a established status of community. than contends that arate rather Defendant since Code, Civil 161(a) amendment in of the 1927 section present, existing equal interest in the com- a wife has a section, former munity property, the cases decided under competent that she as witness an action holding was an community her on a not husband claim estate are they pertinent upon her lack here because were based However, claim. present community interest the Perkins his involved a transfer a husband to his wife of inter- case claim, and he unquestionably est in such a had a vested community property interest all at that time. if it be assumed that error was committed
But even her to not permitting testify, prejudicial not and did was miscarriage justice. evidence heretofore constitute judgment from sources supporting discussed all came cumulative, Roy. testimony merely Mrs. other than Her judg- adequate there it to being .support without evidence 187 ment. The ease sitting tried before court without "a jury. saving objection by Defendant his stipulation oppor had tunity to Roy. did cross-examine Mrs. It has been held proper that under the circumstances where there is sufficient independent competent support evidence to erroneously without the testimony incompetent admitted witnesses, Gibson, error (Evans such prejudicial. v. 220 389]; Cal. 476 Coats, P.2d 6 v. Cal.App.2d Manford 395]; Gump McPherson, P.2d v. Cal.App. *10 P.2d 893].) judgment is affirmed.
Shenk, J., Schauer, J. pro tern., concurred.
Gibson, J., Curtis, J., C. judgment concurred in the ground opinion on the stated in the admission of the wife, though evidence of even prej- was not erroneous, udicial.
TRATNOR, J. —I dissent. 1880 of Code Section Civil provides: Procedure “The following persons cannot be wit- . . . nesses : or assignors parties 3. Parties or to an action proceeding, persons or proceeding whose behalf an action or against prosecuted, an executor or upon administrator claim, or demand person, estate a deceased as any occurring matter fact before such de- the death of person.” ceased The wisdom of such a has been a statute controversy matter long may so be time for well Legislature to freshly make a re-examination that will protection evaluate of estates from false claims and just defeating (See risk of ensuing Wigmore claims. Evi- (3d 578, ed.) any dence 2165.) In event the section §§ repealed Legislature. should be only by amended Its properly revision cannot court, be undertaken only could quibbles words, resort over it does in the present agreement case labelling the between the husband a relinquishment and wife than assignment. rather an Tel., 190], Perkins v. & Sunset Tel. 155 Cal. P. upon opinion relies, majority way which the no concerned 1880(3) Moreover, section of Civil the Code Procedure. years injuries ten before the cause of action for the agreed community wife the husband arose that all wife separate property prop- future should be the acquired succeed- wife, of the the reference erty unnecessary action dictum ing the therefore cause the decision. that a light improbable
In of all evidence different er- judgment would have reached had the been roneously the error admitted evidence been excluded. Since prejudicial is therefore reversed. Edmonds, J., concurred. Nov. 2, F. No. In Bank. 16772.
[S. 1942.] D. MUELLER, (a J. Appellant, v. ELBA OIL COMPANY al.,
Partnership) Respondents. et