29 P.2d 910 | Cal. Ct. App. | 1934
Suit was brought by plaintiff to recover a balance of $3,500 on an earned commission of $8,500. It was admitted that defendant agreed in writing to pay the total commission of $8,500 and that but $5,000 thereof was actually paid. Defendant set up as an affirmative defense that the purchaser to whom the property was sold, on which sale the commission was earned, defaulted and refused to perform its obligation to purchase and asked to be relieved from such obligation. This was agreed to by defendant, providing the latter was released from paying the balance of such commission. On April 4, 1929, plaintiff executed and delivered to defendant the following writing:
"April 4, 1929
"Sears, Roebuck and Co., "Los Angeles.
"Gentlemen:
"With reference to the purposed sale of your property at the N.E. corner of 59th St. and Vermont Ave., being in size 200' x 150', to the Urban Properties Co., which was negotiated by us as your agent and in the course of which there was paid to us the sum of Five Thousand Dollars ($5000) on account of commission earned by us, we hereby accept said sum of Five Thousand Dollars ($5000) in full settlement and satisfaction of our claim for Eighty-five Hundred Dollars ($8500), together with any and all claims accruing to us as agents in the negotiation of said sale. *767
"We hereby release you from any further payment or obligation to us on account of the negotiation of said sale.
"Yours very truly, "W. ROSS CAMPBELL CO., "By C.A. GREESE, "C.A. GREESE, "Asst. Secy-Treas."
A written stipulation filed by the parties in effect sets out the foregoing facts as well as others which we do not deem material here, but which tended to show that the original escrow was not canceled, but was kept alive by agreement pending action upon an option given to Mr. Van Vleet, the president of Urban Properties Company, to purchase the property in question, which option was finally taken up and title to the property was vested in said company, which in turn executed deeds to the real purchasers, evidently to save sending such deeds back to Chicago to be executed by defendant corporation.
[1] A prima facie case having been made by plaintiff, and the stipulated facts showing that the affirmative defense of a release was apparently good, the burden then devolved upon plaintiff to show that in fact it was not. Plaintiff accepted such burden and introduced evidence tending to show that Mr. Humphrey, regional manager for defendant during the negotiations leading up to the execution of the release, told Mr. King, outside man for plaintiff, that he had given an option to purchase the property to the president of said Urban Properties Company, so that if purchased, the $15,000 paid by such company would be saved, and that if such option was taken up the balance of the commission would be paid by defendant; and that such promise was communicated to plaintiff corporation, which thereupon executed and delivered said release. Such evidence was objected to by defendant upon the ground that it was an attempt to vary the terms of a written instrument by evidence of a prior parol agreement. The objection was overruled, but at the close of such testimony it was stricken on motion of defendant. Appellant urges that it was error so to do.
[2] Under section 462, Code of Civil Procedure, the affirmative defense alleged was at the trial deemed to be controverted, and plaintiff was entitled to offer evidence *768
rebutting that establishing such affirmative defense without a pleading by way of replication. (Llewellyn Iron Works v.Abbott Kinney Co.,
That such prior parol agreement would vary the written release would seem to be unquestioned. In such case, may the rule be avoided, under the rule of failure of consideration, by treating the prior parol promise as the real consideration for the release? In our opinion it cannot.
In the case of Hendrick v. Crowley,
[4] Nor would the fact that the $5,000 had already been paid some time before the release was executed necessarily mean that there was no consideration for its execution. Being a formal, express, written release of an obligation, no consideration is necessary to support it. (Sec. 1541, Civ. Code; Upper etc. CanalCo. v. Roach,
[5] The release in question here was apparently drawn in plaintiff's office by someone representing plaintiff, and there executed. It is so clear and unequivocal in its terms that no resort to the circumstances surrounding its execution is necessary to ascertain the intention of the parties. Plaintiff seeks to evade the result of its plain terms by proof of a parol, unperformed agreement which is directly contrary to such clear meaning. It is well settled that a fraudulent representation as to a material matter inducing the execution of an agreement may be shown by parol evidence, even where the written instrument purports to contain the entire agreement between the parties. (Hunt v. L.M. Field, Inc.,
In the case of Yuba Mfg. Co. v. Stone,
We agree that on principle there can be no difference between a promise which amounts to a warranty and one that does not, where both are obnoxious to the rule that the final written agreement of the parties cannot be changed by a prior parol agreement. On principle we see no similarity between the claim of fraud here and that involved in the case of Stewart v. Crowley,
There was nothing in the evidence in the case before us to show that plaintiff did not act freely in giving an absolute release to defendant, and in our opinion having so acted, when it could have made such release conditional on the failure of the optionee to complete the sale, it cannot *772 now defeat its own written release by showing a prior parol agreement entirely inconsistent therewith.
Judgment affirmed.
Stephens, P.J., and Craig, J., concurred.