Mills v. Jackson

The action was in replevin. It grew out of the purchase by plaintiff of certain real and personal property for the sum of $35,000. At the time of the agreement for the sale a memorandum was drawn up by Mr. Mills and signed by Mr. Jackson, as follows:

“March 8th, 1911, received of Robt. M. Mills $500, being part of the purchase price, for the ranch, known as the Arbaugh Ranch and the Arenburgh Ranch and also the ranch known as the French Ranch in McCloud or Squaw Valley ranch, containing in all 965 acres with all appurtenances, also all personal property on said ranches, live stock, hay and grain, farm and dairy implements, furniture, and &e.

“Except 14 head horses, 2 doz. chickens, and piano and parlor table and hall piece, one saddle and bridle.

‘ ‘ Consideration for the three above named- ranches thirty-five thousand dollars to be cash payment.”

The balance of the consideration was afterward paid by plaintiff but a dispute arose as to the articles of personal property covered by the agreement, and hence this suit. Before trial plaintiff was permitted to amend his complaint by excluding some of the personal property claimed therein and, after the evidence was in but before submission of the case, another amendment was allowed setting up an equitable estoppel against defendant Emma H. Jackson. The jury trying the case found the following verdict: “We, the jury impaneled to try the case wherein Robert M. Mills is plaintiff and Thomas J. Jackson and Emma H. Jackson are defendants, do find for the plaintiff and fix the value of the property mentioned in the complaint at the sum of $833, eight hundred and thirty-three dollars.”

We deem unnecessary elaborate treatment of the points made by appellant, as the principles involved are elementary

That it was within the discretion of the court to permit the plaintiff to file the said amendments to his complaint we entertain no doubt. The purpose was to promote the determination of the cause upon its merits with as little expense and trouble as possible, and the proceeding was clearly within the letter and the spirit of our reformed procedure. No reason is apparent why a party who brings an action and subsequently discovers that he is entitled to only a portion of that for which he sues should not be permitted by amendment to •his complaint to invoke the judgment of the court or jury upon the real issue between the parties. It seems difficult to understand why he should be compelled to try the title to something to which he has found out before trial that he had no title and when he has concluded not to assert title to it. Of course, if defendants had been taken by surprise or put to additional expense, no doubt the court, upon a proper showing, might and would have imposed terms upon plaintiff,' but no such case is presented. It is equally clear that, upon principle and authority, the court was justified in allowing an amendment to conform to the proof. The complaint was framed upon the theory that the property was sold to plaintiff by the defendants. There was evidence at the trial that defendant Emma IT. Jackson was not an actual vendor, but that she represented to the purchaser that she had no interest in the property but that it belonged solely to her husband, defendant, Thomas J. Jackson. It was to meet this theory that the amendment was allowed. The equitable estoppel thereby pleaded was undoubtedly germane to the issue of ownership, which was before the jury for determination. Upon this branch of the case it is deemed sufficient to cite the following authorities: Sections 469 and 470, Code of Civil Procedure; Hedstrom v. Union Trust Co., 7 Cal. App. 278 , [ 94 Pac. 386 ]; Jackson v. Jackson, 94 Cal. 462 , [ 29 Pac. 967 ] ; Firebaugh v. Burbank, 121 Cal. 186 , 193, [ 53 Pac. 560 ].

Appellants’ claim that the equitable estoppel was not sufficiently pleaded is unwarranted. Plaintiff, following substantially the language of subdivision 3 of section 1962, Code of Civil Procedure, averred “that at the time of making such

The court did not err in allowing parol evidence of the negotiations between the parties. The effect of this was not to vary the terms of any written contract. It is apparent that the written memorandum received in evidence is quite incomplete as to the personal property. There was no attempt therein to enumerate or specify the articles definitely, and hence parol evidence was proper and necessary for their identification—in other words, for the purpose of showing that the personal property described in the complaint was identical with that intended to be and actually sold. (Habenicht v. Lassik, 77 Cal. 139 , [ 19 Pac. 260 ].) Since Emma H. Jackson also participated in these negotiations, the evidence was admissible against her, since it is admitted that she did not sign said written instrument. This would be so, upon either theory, that she was a part owner, or that by her acts and declarations she was estopped from denying the ownership of her husband. Since a part of the purchase money was paid at the time of the sale and afterward the balance, she is in no position to urge, in opposition to this view, the statute of frauds as prescribed in section 1624 of the Civil Code.

The original complaint, as we have seen, alleged that plaintiff purchased the property “from the defendants.” The

There is some general criticism of the action of the court in the matter of instructions. We think, however, that the law was fully and fairly disclosed therein, and we can see no ground for appellants’ complaint.

It is claimed that the jury should have found in favor of appellants for the return of the property included in the original but omitted from the amended complaint. No such verdict, however, was demanded in the amended answer, and therefore no issue was presented as to these articles. The reason why no such demand was made is probably because said property had been returned by plaintiff. It is stated by respondent in his brief, and not denied by appellants, that said property had been restored to defendants before the trial of the action. This being true, and the plaintiff having abandoned all claim to them, they were, of course, eliminated from further consideration. The situation in Howell v. Foster, 65 Cal. 169 , [ 3 Pac. 647 ], was quite different, as is apparent from a reading of that case.

No other point is deemed of sufficient importance to merit specific attention.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 16, 1912.

Beatty, C. J., dissented from the order denying a rehearing in the supreme court.