Mulrooney v. Pietro

180 P.2d 62, 79 Cal. App. 2d 311, 1947 Cal. App. LEXIS 825

• Court: California Court of Appeal
• Decided: April 22, 1947
• Docket: Civ. 15465
• Status: Published

Opinions

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury for the alleged conversion of a number “55” automatic screw machine, defendants appeal.

So far as material here the complaint was in two causes of action, one for the recovery of a number “55” automatic screw machine, and the other for damages for conversion of the machine. In paragraph seven of the first cause of action, it is alleged that plaintiff was damaged in the sum of $4,000 by reason of the alleged detention of the machine. In paragraph three of the second cause of action, it is alleged that plaintiff was damaged in the sum of $9,576 by reason of the detention of the machine. Both of the foregoing allegations were found by the trial court to be true and in addition, the trial court found “that ever since the 9th day of August, 1943, the defendants and each of them have unlawfully detained and converted that certain number ‘55’ Acme Automatic Screw Machine, ...”

This is the single question necessary for us to determine :

Was there substantial evidence to sustain the trial court’s findings that defendants unlawfully detained or converted a number “55” automatic screw machine from plaintiffs?

This question must be answered in the negative. The only evidence introduced upon this issue was given by plaintiff and defendants. Plaintiff testified that on August 9, 1943, he took the number “55” machine to defendants’ place of business pursuant to an oral agreement that the defendants would operate the machine upon the same terms and provisions as appeared in a written agreement between the parties dated July 9, 1943, covering two “53” automatic machines; that in the latter part of November, 1943, he served upon defendants ten days’ oral notice of the termination of the oral contract, but that on November 29, 1943, a writing was executed by the parties for their governance in relation to the “55” machine. By such instrument plaintiff agreed to leave the number “55” machine with defendants “for the period necessary to run such contracts that have been placed . . . from the Collins Engineering Company . . . time limit not to exceed March 15, 1944 . . plaintiff “to receive 45% of all net profits earned on the above machine. ...” The writing was thereafter acted upon by defendants as constituting the terms of their understanding with reference to defendants’ possession of the number “55” machine. On the other hand defendants testified that the number “55” machine had been brought to them by plaintiff in the month of August, 1943, for the purpose of having it repaired. Whether the trial court believed plaintiff or defendants neither furnishes support for the finding that defendants were guilty of conversion or of unlawfully detaining the number “55” machine from plaintiff. There is no testimony that preponderates against the writing of November 29, 1943. It follows that the findings of the trial court are without substantial support.

By certain parol testimony plaintiff claimed that he and defendants had orally agreed to terminate their contract in January, 1944. By such oral agreement he contends that a mutual rescission was effected notwithstanding the fact that according to his own testimony defendants declined to make delivery of the number “55” machine to him. It is elemental that an oral agreement to rescind a written contract is ineffectual unless such oral agreement is consummated. It is now established that the parol evidence rule is not merely a rule of evidence but a principle of substantive law. (Estate of Gaines, 15 Cal.2d 255, 264 [100 P.2d 1055] ; Nourse v. Kovacevich, 42 Cal.App.2d 769, 771 [109 P.2d 999].) The only evidence of a mutual rescission of the contract of November 29, 1943, which the court could legally have considered was either a written agreement signed by the parties or an executed oral agreement terminating their written contract. Unless so rescinded the rights of the parties were determinable solely by the writing of November 29. The parol evidence of such attempted rescission should have been disregarded even though it was received without objections. (Gore v. Bingaman, 29 Cal.App.2d 460, 479 [85 P.2d 172]; Fogler v. Purkiser, 127 Cal.App. 554, 560 [16 P.2d 305].)

The writing of November 29 contained the statement “the time limit not to exceed March 15,1944. ’ ’ A reasonable interpretation of such language is that defendants should continue use of the machine until the specified date. But viewing the contract most favorably to plaintiff he would have no right to a return of the machine until the expiration of the “period necessary to run such contracts that have been placed” with defendants by the Collins’ Engineering Company, There is no proof that any contracts had been placed with defendants by the engineering company; neither is there proof that all of such contracts had been “run.” It follows that in the absence of proof that the period necessary to “run” such contracts had expired, plaintiff could not reasonably contend that his obligation to leave the machine until March 15, 1944, had been satisfied.

The judgment is reversed.

Moore, P. J., concurred.