Jersey Island Dredging Co. v. Whitney

This action was brought by plaintiff to recover the sum of $550.45, alleged to be due it from defendant, for certain dredging work done by it on defendant's ranch at the head of San Pablo Bay, between the nineteenth and thirtieth days of September, 1900, at the agreed price of seventy dollars per day of twenty-two hours. Plaintiff had judgment for the full amount claimed, and defendant appeals from such judgment, and from an order denying his motion for a new trial. Among other defenses, the defendant alleged that all claims of plaintiff on account of any dredging work had been fully compromised, satisfied, and discharged. The trial court found against defendant upon this issue. The principal point made here is as to the rulings of the trial court in admitting certain evidence upon this issue. To a proper understanding of these rulings, a brief statement of facts is essential. According to the contract between the parties, the dredger was hired by defendant at a certain rate per diem of twenty-two hours, — viz. seventy dollars, the dredging work to be done under the direction of defendant, and to continue during his pleasure, the contract not specifying, describing, or limiting the work to be done. On September 1, 1900, a bill had been presented by plaintiff to defendant for work done prior to that date, amounting at the prescribed rate to $1,097.75. This bill itemized the days and hours of work. Upon this bill, defendant had paid one thousand dollars. On or about September 17, 1900, plaintiff presented to defendant a bill, bearing date September 17, 1900, for $721.35, purporting to be for work to and including September 13th. Upon this bill, the charges were itemized as follows, viz.: — "Bal. due on bill Sept. 1st ..........$ 97.75 143 hours work ....................... 455.00 53 hours aground ..................... 168.60" and attached thereto was an itemized statement of the hours of actual work each day. *Page 271 At this time the dredger was still engaged in the service of defendant, and continued so to be to and including the first day of October, and between September 17th and October 1st, the work for which recovery is here sought was done. Upon the presentation of the bill of September 17th, some dispute arose between plaintiff's president, Mr. Wright, and defendant, as to the precise nature of which there is a conflict of evidence, which continued over a period of several days, until, on September 25th, defendant paid Wright $650, and wrote across the face of the bill the following, viz.: "Sept. 25, 1900. Paid $650 in full satisfaction of all claims and guaranteed against liens," and this was signed by Wright as follows: "Jersey Island Dredging Co., per W.H. Wright, Pres't." At this time no bill for any work done subsequent to September 13th had been presented. It is this statement written across the face of the bill of September 17th that is claimed by defendant to constitute a written contract of compromise and release of all claims on account of dredging work, not only for such work as was done prior to September 17th, and embraced in said bill, and that done between September 17th and September 25th, but also for that done subsequent to September 25th. It is apparent that construing this writing most favorably to defendant, it could not include any claim for work done subsequent to September 25th, the day it was executed, and that defendant was compelled to resort to parol testimony to substantiate the claim made by him, — viz. that the $650 was paid and received in full satisfaction of all work done and to be done. This he was allowed to do, and he testified that there was a dispute both as to the character and manner of work and the charges therefor, and that he and Wright agreed that Wright would go on and finish such dredging work as remained to be done, and that he would pay Wright $650, with the understanding that such payment ended the matter, and, with the one thousand dollars already paid, constitute full payment for all services rendered and to be rendered under the contract. This was the only claim made by defendant, and there was no pretense that the writing was made to cover in addition to the charges specified in the bill, merely amounts due at its date, September 25th. As we have said, defendant was *Page 272 allowed to give this evidence to support a claim at variance with the terms of the writing. In rebuttal, Wright was allowed to testify that the only item in the bill of September 17th that was ever disputed was the charge of $168.60 for fifty-three hours while the dredger was aground, Wright claiming that such charge was entirely proper and customary, and that, after several interviews, he agreed to make a slight reduction and accept $650, if Whitney would pay that sum at once. He further testified that there was no discussion or consideration as to any other bill or claim than the one presented, and no discussion as to the payment of $650 being in full as to anything except that bill, and that at the time of the payment he did not know what work had been done since the making of the bill. Thus far, he certainly did no more than to testify, in reply to the testimony of defendant, as to the circumstances under which the payment was made and the writing signed, and to contradict the testimony of defendant as to a parol agreement at variance with the terms of the writing. He was then asked, "When you accepted this $650 and signed this paper, what were you settling?" and answered, "That bill," referring to the bill of September 17th. He was then asked, "Were you settling anything else?" and answered, "No sir." The questions were each objected to on the sole ground that they constituted efforts to contradict a writing by parol evidence, and the objections were overruled. These are the only rulings relative to the admission of evidence which are assigned as error and discussed in defendant's brief. The questions were objectionable as calling for the mere opinion or conclusion of the witness, but no such objection was made. And even if error was committed in the admission of such testimony, we would not be justified in holding it to be prejudicial, for the answers of the witness did no more than to give the conclusion which would necessarily follow his testimony as to the circumstances under which the alleged release was signed. The answers to the questions under consideration constituted no more than a mere summary, in the form of a conclusion or opinion, of the previous testimony of the witness, and could have added nothing to the effect thereof in the mind of the trial judge. There was certainly no error in the admission of such previous *Page 273 testimony. Assuming that the writing relied on constituted a valid contract or release instead of a mere receipt, the question still remained as to what was released thereby. It is true the writing stated that the $650 was "in full satisfaction of all claims," but taking into consideration the fact that this was written across the face of the itemized bill of September 17th, and that the amount named and paid was less than the total amount of such bill, it cannot reasonably be claimed that it clearly and explicitly shows a release and satisfaction of all claims of whatever nature from the beginning of the world to the date thereof. Taking the whole writing together, which includes not only the statement as to payment, but also the bill on which the statement is written, one might reasonably conclude therefrom that the whole subject-matter of the release was the bill upon which it was written and the claims evidenced thereby, and in the absence of any evidence at all as to the surrounding circumstances, there would be strong ground for holding this to be the proper construction of the writing. Under these circumstances, parol evidence as to the surrounding circumstances was admissible, in order that the trial judge might be placed in the position of those whose language he was to interpret. (Civ. Code, sec. 1647; Code Civ. Proc., sec. 1860.) Taking as true the evidence of Wright as to these circumstances, which for the purposes of this appeal must be done, there can be no doubt as to the sufficiency of the evidence to sustain the conclusion of the trial court that the instrument relied on by defendant was a release only of such claims as were evidenced by the bill of September 17th. As has been said, none of these claims are involved in this action. We cannot see that the additional words "and guaranteed against liens" are at all material in the determination of the question as to the subject-matter of the alleged release. The evidence was sufficient to sustain the finding of the trial court to the effect that no part of the amount claimed had been paid. Some point is made as to $250 shown to have been advanced by a tenant of defendant to plaintiff, but the evidence entirely fails to show that this payment was made for or on account of the defendant, or that it was intended as a payment at all. No other point is made for reversal. *Page 274 The judgment and order denying a new trial are affirmed. Sloss, J., Shaw, J., Henshaw, J., and Lorigan, J., concurred.