Sublett v. Henry's Turk & Taylor Lunch , 21 Cal. 2d 273 ( 1942 )

CARTER, J.

— I dissent. I cannot agree with the result reached in the majority opinion. The case is simply one of an action by a union employee to recover the wage scale fixed by a collective bargaining agreement to pay the union wage scale between the union and the defendant, employer. It is conceded in the majority opinion that such an action will lie under the third party beneficiary contract theory, and that there is sufficient evidence in the record to establish an agreement between the union and the defendant employer. The judgment is reversed solely upon the ground that the complaint and findings concern a written agreement whereas the evidence supports an oral agreement. Neither the allegations in the complaint nor the findings necessarily preclude the existence of an oral contract. It is alleged in the complaint that defendants, “by written instruments” contracted with the union. Thereafter the particular instruments described in the opinion are referred to. The findings follow the complaint. The oral agreement which the evidence establishes is founded on the instruments and the conduct of the parties from which flows an. implied in fact agreement. Therefore as far as they go the findings are correct in stating that the contract was by written instruments. It was by written instruments and other evidence. This does not create such a fatal variance between the proof and the pleadings and findings as to require a reversal.

In any event defendant has waived any variance and has not been prejudiced. It ddd not object to any of the evidence. It in fact practically conceded the truth of plaintiff’s evidence. It never at any time asserted that a fatal or any variance existed. Its sole contention was that under the facts, plaintiff could not, as a matter of law, prevail, and denied the existence of any agreement oral or written. It is said in the majority opinion that “Where a written contract is alleged and an oral contract is proved, the variance is material if it has resulted in misleading the adverse party by depriving him of the defense afforded by the statute of limitations.” Here the defendant was never misled. It did not plead the statute of limitations in its answer; it merely denied the existence of any agreement. After plaintiff’s evidence was introduced without objection by defendant, the trial court called the parties’ attention to the statute of limitations, two years on an oral contract and four years on a written one, hut defendant made no effort to amend its answer and plead the statute although plaintiff’s evidence was all in and it knew the basis of his claim. The following occurred at the close of the trial: “The Court: In other words, you want to reduce it down simply to a question of consideration of the agreement between the parties, irrespective of whether they violated any rules and even though there was a contract with the third party to pay the union scale, if the parties had made a contract — any consideration of the amounts paid— Mr. Marks: (Defendant’s counsel) That is correct. Therefore there would be no purpose served in going into lengthy testimony, item by item, month by month; it becomes first, as I say, purely a question of law, taking Mr. Suhlett’s testimony. The Court: How about the statute of limitations? Mr. Marks: I had not thought of that. There is no written contract between the parties. The suit was filed in February, 1939, and a great deal of this money had matured. The Court: Beyond the two years. Mr. Belli: (Plaintiff’s counsel) I wonder if it need he a written contract for the payment of wages in the first place ? Mr. Marks: All of those are matters of law, and no witness could testify to those phases..... The Court: That is all right, but I think under the statute of limitations there is no agreement in writing between the respective parties here as to the question of salary, and a great deal of this had matured by February, 1937. Mr. Marks: At all events, if the court please, again, as far as the union card and those things are concerned, by our absence of proof of the defendants, we are not denying the testimony offered that the card was displayed and those instruments were in existence. There is no testimony to contradict that. . . . The Court: Is there any argument ? Mr. Marks: For the record, and I think perhaps your Honor would want to reserve it until we submit memorandums, I desire to move for a non-suit, and that, of course, could be reserved.”

It is obvious from the foregoing that defendants were not prejudiced by plaintiff’s failure to plead an oral instead of a written contract. Even after the trial court called attention to the statute of limitations, counsel for defendants did not ask leave to amend his answer and plead the applicable statute. This clearly constituted a waiver of such plea. The defendants continued to rely upon their contention that there was no valid agreement as a basis for plaintiff’s cause of action. All of the discussion in the majority opinion in regard to defendants being misled to their prejudice as the result of a material variance between the pleading and proof of plaintiff’s cause of action is beside the point. Such prejudice was not claimed by defendants in the trial court. They saw fit to rely solely upon the theory that plaintiff had no cause of action for the recovery sought. The issue was thus essentially whether there was any agreement, and if so, its legal effect.

Defendants could have pleaded the statute of limitations before the submission of the cause if they desired to rely thereon as a defense to any portion of plaintiff’s demand. Not having done so, such defense was waived.

It is elementary that unless the applicable statute of limitation is pleaded, it is waived and cannot be relied upon as a defense. (16 Cal.Jur. 603.)

Such is the situation presented by the record in this case, and in my opinion the judgment should be affirmed.