DocketNumber: No. 786
Citation Numbers: 1 Cal. Unrep. 276
Judges: Rhodes, Sanderson, Sawyer
Filed Date: 4/5/1866
Status: Precedential
Modified Date: 1/12/2023
This is the fourth appeal in the case: See 21 Cal. 122; 22 Cal. 128; 23 Cal. 249. The questions raised and discussed in the briefs all arise on the judgment-roll. On the first trial the defendant introduced under objection parol evidence to show that a written contract between the parties, before put in evidence, did not contain the entire contract— that a material term of the contract in favor of the defendant had been omitted by mistake of the scrivener in drafting the instrument. But the mistake was not set up in the answer.
When the case went back for new trial, the defendant, in pursuance of the suggestion in the opinion, by leave of the district court, filed an amended answer, in which they set up the contract as it was claimed to have been made, and alleged that a material term of the contract had been omitted by a mistake, and asked that it be reformed by the court and then enforced in his favor as corrected. On the second appeal it was held that the amended answer was properly filed: 22 Cal. 130. The defendant having succeeded on a trial upon the merits, a third appeal was taken by the plaintiff. The principal question now made was then presented and decided against the plaintiff, but the judgment was reversed because the court below refused to continue the cause pending an appeal from an order refusing to change the place of trial: 23 Cal. 254. That the answer discloses a case which justifies a reformation of the agreement, and that parol evidence is admissible to show the mistake under the present answer was, we think, substantially decided on. the previous appeals: 21 Cal. 122, and 22 Cal. 127, and 23 Cal. 250. At all events, we think
The validity of the compromise by which the various creditors agreed to accept a part in satisfaction of the whole debt is also sustained in the decision on the first appeal: 2.1 Cal. 129. Such compromises stand upon a different footing from those agreements in which a single creditor, without reference to any other, agrees with his debtor without consideration to receive- a part in satisfaction of the whole debt.
There is no foundation in the record for the last point made by appellant that the court erred in not giving judgment for the one hundred and twenty-four dollars and forty-three cents. The findings are in accordance with the answer, and they and the judgment show that this sum was on deposit in court, and the judgment directs it to be paid over to the appellant — the plaintiff in this suit.
We find no error in the record. Judgment affirmed.