Purdy v. Buffums, Inc.

Some time prior to June 23, 1923, the plaintiff entered into negotiations with the defendant for her employment as manager of its hair goods and beauty parlor department, and wrote the defendant a letter in which she offered to enter upon such employment at $50 per week and five per cent of the gross sales of the department. Thereupon the defendant replied by letter as follows:

“Our Mr. Johnson handed me your note, which I have gone over carefully, and am glad to know that you have decided to come with us later, when our building is ready. . . .

“As I recall, your wage was to be $50.00 per week and five per cent of the gross sales. Without going into the matter more fully, I might say that the percentage seems a bit high, at least while the business is being developed. The wage is all right, for I am sure you can put across the program that we are intending to inaugurate. However, we are willing to let the percentage part remain, and will work it out with you later.

“We want you to feel that you are engaged for the job, and will leave the entire matter in your hands.”

And from that time on both parties considered that plaintiff was employed as manager of the department which was to be established when a new. building was completed. On May 1, 1924, the plaintiff commenced upon her duties as indicated. She had several conversations with Mr. Buffum, president of the company, but nothing was ever said about changing her compensation. On May 5, 1924, she went downstairs to the bookkeeper, named Miss Brown,

“Form 19-1M 1-23 DEL MAR.

Buff urns’ No. 2401

24 and 25

Department: Beauty Parlor Date 5/5, 1924

Name: Mrs. Aleen Purdy Address: 239 Ximeno Telephone number.

Occupation: Beauty Parlor

To begin 5/5, 1924 . Rate $50.00 per wk.

It is understood and agreed that my term of employment may be discontinued at any time by myself or Buff urns’, and that my compensation Employed by shall be based on the actual time employed. Approved by C. A. B.

Aleen Purdy Entered Pay Roll

Employe’s Name.” Record No.

Plaintiff accepted for almost a year $50 per week and made no demand for her commission until the day prior to her resignation. In explanation she said she did not expect the payment of the commission until the end of the year.

The trial court held in effect that the two letters constituted a contract between the parties and that this contract was not modified, so far as compensation was concerned, by the writing of May 5th, and entered judgment accordingly.

It is the contention of appellant (1) that there was no valid contract between the parties, and (2) that if there were such a contract, it was modified by the writing of May 5th and that plaintiff’s compensation was limited thereby to $50 per week. In support of these contentions appellant expounds several propositions of law which it seems our duty to consider.

Appellant contends that there is no contract “when essential parts of the intended agreement are to be determined by future negotiations.” (6 Cal. Jur. 45.) But in this case we have an offer and an unequivocal acceptance of it.

Appellant next asserts that “Preliminary negotiations are not evidence of a binding agreement and are nudum pactum.” It is certainly true that an agreement that parties will, in the future, make such contract as they may then (later) agree upon amounts to nothing. (Dillingham v. Dahlgren, 52 Cal. App. 322 [ 198 Pac. 832 ].) But this law has no application to the wriling before us, as we have endeavored to point out above.

Again it contends that “When the price of the commodity called for is to be subsequently fixed by the agreement of the parties, the contract of sale is incomplete and nonenforceable until the price is so fixed or agreed upon” (citing Jules Levy & Bros. v. A. Mautz & Co., 16 Cal. App. 666 [ 117 Pac. 936 ]). This is merely a more specific or detailed statement of the same law. If the acceptance be qualified or go not to the actual thing proposed, there is no binding contract. (Four Oil Co. v. United Oil Producers, 145 Cal. 623 [ 68 L. R. A. 226 , 79 Pac. 366 ].) However, in the instant case there is a definite proposal and the proposal was squarely assented to.

Appellant next contends for the rule that the intention of the parties should be gathered from the whole instrument, taking it by the four corners, and when several papers concerning one subject matter are separately

Appellant next contends for the rules that a contract may be explained by reference to the circumstances under which it was made and that the acts of the parties done under a contract afford one of the most reliable means of arriving at their intention. But these rules are not applicable in construing clear and unambiguous contracts. They have to do with the contracts in which the intention of the parties cannot be ascertained from the writing alone because the writing is doubtful, uncertain, or ambiguous. (Salter v. Ives, 171 Cal. 790 [ 155 Pac. 84 ].) The intention of the parties is to be ascertained from the writing alone if possible. (Civ. Code, sec. 1639.) Surrounding circumstances and subsequent conduct may be invoked to interpret a contract only in cases where upon the face of the contract itself there is doubt, and the evidence is used to dispel that doubt, not by showing that the parties meant something other than what they said, but by showing what they meant by what they said. (United Iron Works v. Outer Harbor etc. Co., 168 Cal. 81 [ 141 Pac. 917 ]; Pierce v. Merrill, 128 Cal. 464 [ 79 Am. St. Rep. 56 , 61 Pac. 64 ].)

The judgment is affirmed.

Houser, Acting P. J., and York, J., concurred.