WOOD (Fred B.), J.
Defendants appeal from a judgment rendered against them for $2,000 as the balance due plaintiff upon a written agreement and $4,050 as the balance due him upon an oral agreement for work done in the remodeling and decorating of a restaurant owned by the defendants as copartners. Not having discussed the $4,050 portion of the judgment, defendants may be deemed to have abandoned that phase of their appeal.
In respect to the $2,000 recovery upon the written agreement, appellants assign as error: (1) the admission of extrinsic evidence tending to show that the written agreement was not the joint and several obligation of respondent MacIntyre and one John Oshanna, an unlicensed person who also signed the agreement; and (2) the giving of a certain instruction whereby the trial court assertedly delegated to the jury the determination of a question of law, the question whether or not the written agreement imported a complete legal obligation.
(1) The interpretation of the document, and the admissibility of extrinsic evidence in aid of its interpretation, became important at the trial because if it were the joint and several obligation of respondent and Oshanna, respondent could not recover. Respondent held a state building contractor's license but Oshanna did not. Nor did they have a joint license
Dated June 9, 1947, written upon the letterhead of respondent MacIntyre, addressed to the "Derby Restaurant," it reads as follows:
"We agree to do the following installation and decoration in your Restaurant:
"1. To remove the existing canopy over the entrance.
"2. To remodel the existing front of both the Restaurant and the cocktail room as shown on plan No. 2 ... [Certain details thereof, and materials to be used, are specified.] ...
"3. To build a checkroom and foyer as shown on plan. Walls of these two rooms to be 10 ft high ... [Certain details thereof, described.] ...
"4. To open the floor over the existing stairs leading down to the washrooms. To frame in a railing around the stairs from existing panels on the premises. All other work in repairing and plumbing below shall be figured later under separate agreement.
"5. To install double exit doors as shown on plan to conform with the requirements of the Fire Department.
"6. To install a maple hardwood dance floor on sleepers on the existing cement floor. Floor now to be approximately 1800 square ft.... [Platform for music, installation of mirrors, etc.] ...
"All other construction such as moving the bar to new location, revamping the booths to fit along new locations and any other work will be figured aside from this agreement.
"7. To drape the ceiling with panels of four pastel toned glass fibre cloth, plus full length wall drapes from the ceiling to the base of the band stand and as wide as the length of the band stand.
"8. To paint the walls and ceiling under the mezzanine in flat oil paint, and walls of the main room in the same
"9. To install 14 light fixtures on the ceiling from the existing outlets.... [These are described; wiring and circuits specified.] ...
"The above agreement does not include carpet or any plumbing.
"We will make every effort to complete this work within six weeks of signing of this agreement and start of work. This job will be subject to permits by the Dept. of Public Works and C.P.A. Authority.
"The above job will cost $15,500.00 and payable as follows:
Appellants claim that this document clearly shows upon its face, without any ambiguity, that it is a single agreement, the joint and several obligation of MacIntyre and of Oshanna. They direct attention to the fact that it begins with the words "We agree to do the following installation and decoration in your Restaurant" and toward the end declares that "We will make every effort to complete this work within six weeks ...," emphasizing the "We"; was signed both by Oshanna and by MacIntyre, thus characterizing themselves as "We"; and lumps the construction work and the decorating work together, as one job, for a single price.
Respondent directs attention to the fact that respondent signed as "Contractor," but Oshanna signed as "Designer-Decorator." These words (coupled with the absence of a
Thus it appears that the parties are in disagreement as to the meaning of the writing which they signed, as was the case in Wachs v. Wachs, 11 Cal.2d 322, 325 [79 P.2d 1085], Woodbine v. Van Horn, 29 Cal.2d 95, 104 [173 P.2d 17], and Union Oil Co. v. Union Sugar Co., 31 Cal.2d 300, 305 [188 P.2d 470]. As in each of those cases, the writing seems susceptible to either of the interpretations respectively urged by the parties. We cannot to a certainty and with sureness, by a mere reading of the document, determine which is the correct interpretation.
In such a situation, extrinsic evidence becomes admissible as an aid to interpretation, upon the principle, variously stated, as follows: "The fundamental canon of construction which is applicable to contracts generally is the ascertainment of the intention of the parties (Civ. Code, § 1636), and in accordance with section 1638 of the Civil Code, the language of the agreement, if clear and explicit and not conducive to an absurd result, must govern its interpretation. But this does not mean that a portion only of a written instrument, although it is clear and explicit, may be selected as furnishing conclusive evidence of the intentions of the parties. Section 1641 of the Civil Code embraces the true rule in providing that `The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.'" (Universal Sales Corp. v. California Etc. Mfg. Co., 20 Cal.2d 751, 760 [128 P.2d 665]); "A contract must receive such an interpretation as
Ours is not unlike the cases in which extrinsic evidence was admitted to determine whether or not an individual signed a "We promise to pay" note solely in a representative capacity, the signature being "Pioneer Mining Company, John E. Mason, Supt." (Bean v. Pioneer Min. Co., 66 Cal. 451, 453 [6 P. 86]); or whether a person signed a contract in his individual as well as his representative capacity, when he signed as the president of a company and also as "stockholder" (Lynch v. McDonald, 155 Cal. 704 [102 P. 918]); or which type of agreement was intended when a person signed an "Owner Member" marketing agreement form but the designation "Renter Member" was written on the cover of the agreement (California C.P. Growers v. Williams, 11 Cal.2d 221, 228-229 [78 P.2d 1154]); or in what capacity a person signed when he wrote his name under his company's name, without prefixing any qualifying word such as "by" (Carlesimo v. Schwebel, 87 Cal.App.2d 482 [197 P.2d 167]).
The trial judge properly admitted extrinsic evidence on this issue, and instructed the jury as to its use. That evidence supports the finding which is implied from the rendition of the verdict for respondent.
Oshanna testified, without objection: My business is designing and painting murals, that is pictures; in late April or early May, 1947, I had a conversation with Dr. Angel in which he told me that he and his partners wanted the place dolled up; at first the thought was just as to decorating so he asked me to work out some designs and I said I would; I did, and brought them back to Dr. Angel; after I had the second plan he asked me if I knew a reliable contractor and on about the third trip I introduced MacIntyre to the doctor and the doctor asked and MacIntyre gave him an estimate after he had taken the blue prints home and studied them; I typed up the document which was signed; I typed that up for Mr. MacIntyre.
Oshanna was then asked if there had been any discussion prior to the time this document was signed with respect to what Oshanna was to do and what his fee was to be for doing it. Appellants objected upon the ground it would vary the terms of the written agreement. The objection was overruled. The witness answered that there had been a discussion with Dr. Angel, whereupon appellants asked that it be understood that their objection would go to all of this testimony, and the court so ruled. Thereupon Oshanna testified: I had a conversation with Dr. Angel before MacIntyre came in, at which time I told the doctor I would plan and design and there would be a percentage for supervision on the work, and so
Respondent urges that the extrinsic evidence was admissible for the additional reason that the "validity of the agreement" was "the fact in dispute," invoking subdivision 2 of section 1856 of the Code of Civil Procedure. We deem it unnecessary to consider this point in view of our conclusion that such evidence was admissible to resolve an ambiguity in the document.
(2) By one of the instructions, appellants claim, the trial court delegated to the jury the determination of a question of law, the question whether or not the written agreement imported a complete legal obligation. Appellants are mistaken. That instruction gave the jury questions of fact, not of law, to decide. The instruction read as follows: "If you find from all the evidence that the contract was intended by the parties to be one between the Derby Restaurant on one hand and Mr. MacIntyre alone on the other hand, and that Mr. Oshanna's relation to such parties was intended to be solely that of a — strike that last. If you find from all the evidence that it was not intended by the parties that the relationship should be a signed [single?] contract, but, rather, if you find that there were two separate contracts, one by the Derby Restaurant with Oshanna, and the other made by MacIntyre with the Derby Restaurant, and that the Derby Restaurant instructed MacIntyre to place the Oshanna contract in the memorandum of June 9, 1947, then the defense of illegality would not be good. That is to say, you have contradictory evidence here, which is your duty to resolve.
As was said in Walsh v. Walsh, 18 Cal.2d 439, at 444 [116 P.2d 62]: "`When the meaning of the language of a contract is uncertain or doubtful and parol evidence is introduced in aid of its interpretation, the question of its meaning is one of fact...'" If the facts thus adduced were undisputed, it would be the function of the court, not the jury, to consider the writing in the light of such facts, but where (as in the instant case) those facts are in dispute (evidenced by testimony which is in conflict), "`and the meaning of the contract is to be determined one way in one view of the facts, and another way in accordance with another view of the facts, then the determination of the disputed fact must be left to the jury.'" (Coats v. General Motors Corp., 3 Cal.App.2d 340, 355 [39 P.2d 838].) The judgment should be affirmed.
The judgment is affirmed.
Peters, P.J., and Bray, J., concurred.
Appellants' petition for a hearing by the Supreme Court was denied April 24, 1952.