Hale Bros. v. Milliken , 5 Cal. App. 344 ( 1907 )

We have given the petition for a rehearing of this cause careful consideration, and are unable to discover any reason for changing our views, as expressed in the main opinion, upon the questions discussed. It may be suggested that, since filing the original opinion in this case, there has come to our notice the recent case of Leonhart v. CaliforniaWine Assn., ante, p. 19, [89 P. 847], in which the court of the first appellate district discusses at some length the question of the resort to a custom or usage of trade for the purpose of interpreting the language of a written or other express contract. The authorities cited therein were not called to our attention by the attorneys in the case before us. We think some of them are applicable here. It appears to be the settled rule in this state, and ought to be, that where the contract is certain in its terms, parol proof of a usage is inadmissible. (Withers v. Moore, 140 Cal. 591, [74 P. 159].) We not only think that the rule thus stated is applicable here, but also reiterate our adherence to the position that, where a statute itself furnishes a rule of interpretation of certain contracts, as we think is the case here, that rule should be the sole guide of the courts in the interpretation of such contracts, unless the parties thereto, by said contract, have themselves interpreted the same, or furnished a rule by the stipulations of the contract for an interpretation different from that prescribed by the statute. The necessary effect of the application of the rule involved in section 1861 of the Code of Civil Procedure, to all cases of the interpretation of contracts, as contended for by counsel and as he insists is authorized by the opinion in the case of Higgins v. CaliforniaPetroleum and Asphalt Co., 120 Cal. 629, [52 P. 1080], would be to provide easy means of varying the terms of any written contract by parol, however plain and well understood the language of such contract might be. We cannot conceive a more dangerous application of a rule of construction or interpretation, and hardly think the court intended that section 1861, supra, should be pressed, in its application, to the extent to which the language in the Higgins case may be construed as carrying it.

We feel satisfied with the conclusion reached upon all the points made by counsel, and the petition for a rehearing will, therefore, be denied.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 31, 1907.