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District Court of Appeal, First District, Division 1, California.


Civ. 11750.

Decided: January 20, 1942

Raymond Salisbury, of Oakland, in pro. per., and Joseph C. Prior, of Oakland, for appellant. Fitzgerald, Abbott & Beardsley, of Oakland, for respondent.

The respondent here obtained judgment against the appellant, the executor of the decedent's will, in the trial court upon a rejected probate claim.

The complaint in the action alleges that Dr. Drucks, the decedent, owned a Doberman Pinscher dog named Mike which he had purchased as a pup from the plaintiff and thereafter procured plaintiff to train for obedience and protection. It is also alleged that in the year 1938 the plaintiff and Dr. Drucks agreed orally, “That if said Drucks ever became unable to care for said dog, or if he should die, he had arranged that said Mike would be delivered to plaintiff to be housed, fed and cared for by plaintiff for the remainder of said dog's life at plaintiff's usual rate for housing, feeding and caring for such dogs, viz., at the rate of $20.00 per month, which said sum said Drucks promised and agreed to pay, payable at the end of each month, and that said dog was neither to be sold nor exhibited by plaintiff.”

The trial court found the existence of the contract as pleaded in the complaint, gave judgment to the plaintiff in the sum of $480 for caring for the dog for twenty–four months at the rate of $20 per month, and directed the defendant executor to pay an additional $20 per month to the plaintiff each month during the life expectancy of the dog, or a total sum of $1,440, with the alternative of paying this sum into court under the provisions of section 953 of the Probate Code. It is from this judgment that the plaintiff appeals.

In December, 1938, Drucks, whose health had been none too good for some considerable time, became bedridden. On the 30th of the month he was taken to a hospital for an emergency operation, returning to his home on January 5, 1939. He died on January 9, 1939, leaving a net estate upwards of $20,000.

On December 30, 1938, the date on which Dr. Drucks was taken to the hospital, the dog was delivered to the plaintiff at his kennels at San Pablo. Ever since that date the plaintiff has kept the dog at the kennels where he has fed, housed, and cared for him.

Appellant urges as one of the grounds for a reversal of the judgment that there is not sufficient evidence to warrant a finding that any part of the alleged contract was performable in the lifetime of Dr. Drucks. He also takes the position that, although one portion of the contract may be within the statute of frauds, the other portion is without, and the agreement being entire and indivisible, it is wholly unenforceable under the statute. In this connection it is urged that the evidence conclusively shows that Dr. Drucks would not have entered into one portion of the contract without the other, thereby rendering the whole unenforceable.

The contention that there is not sufficient evidence to warrant a finding that the parties entered into the agreement alleged in the complaint finds no support in the record.

The plaintiff called as a witness a Mr. Frank Perry who was employed at the kennels. This witness testified that in June or July of 1938 Dr. Drucks called at the kennels and at that time stated to Mr. Roy, the plaintiff, that his health was failing and that, “In the event anything should happen to me, or I should die, Mike will be brought to the kennel and I want him to stay here and be taken care of and be fed, not to show him and not to work or not to sell him.” This witness testified further that Mr. Roy in response to this statement replied, “Yes, I will do that.” This same witness testified that Dr. Drucks called at the kennels on the Sunday following Thanksgiving of the same year and, after some discussion concerning his health, said to Roy, “So the agreement about Mike still stands,” and they shook hands on it.

Another witness, Melvin Bollinger, testified to a conversation with Dr. Drucks about his arrangements for the keep of the dog, the witness stating: “Doctor Drucks said, ‘Now, Mel, I have a wonderful dog. I get a lot of enjoyment out of him,’ and then he had the dog do different things that Mike did, then he said, ‘you know, I am not a well man and I am making arrangements with Mr. Roy about Mike. I guess if I am unable to take care of Mike I know he will be in good hands and get proper care.’ ”

There appears no contradiction of this testimony which in itself is sufficient to sustain the finding complained of. It has been held over and over again that where there is some substantial evidence to support a finding it will not be disturbed on appeal. It is only when there is no evidence to sustain the finding, or when, as a matter of law, the court can say that there is neither sufficient evidence nor a reasonable inference from evidence to support a finding that an appellate court is warranted in reversing a judgment on this ground. Olivero v. Rosano, 42 Cal.App.2d 740, 109 P.2d 976. This court need inquire only whether there is evidence of a substantial nature to support the judgment, and where reasonable minds might differ on the inferences to be drawn from a particular set of facts, the appellate court will not substitute its own conclusions for those of the trial court. Webster v. Board of Dental Examiners, 17 Cal.2d 534, 110 P.2d 992.

A more serious question is presented with reference to the divisibility of the contract and the enforceability of one portion thereof when the other obviously falls under the ban of the statute. Unless the agreement is separable recovery cannot be had under it. The appellant most seriously contends that the contract alleged and found is entire and indivisible. As to the unenforceability of the agreement as a whole, he relies upon subdivision 6 of section 1973 of the Code of Civil Procedure (see, also, sec. 1624, subd. 6 of the Civil Code) which deals with contracts not to be performed during the lifetime of the promissor. It is urged that the taint cast by the provisions of subdivision 6 of said sections upon that part of the agreement providing that the plaintiff should keep, care for, and house the dog in case Dr. Drucks should die, spreads to, and permeates the whole of the agreement and renders it unenforceable.

A contract, a portion of which is invalid and unenforceable because that part is not in writing, is unenforceable as a whole or in any other part if the contract is entire and indivisible. Fuller v. Reed, 38 Cal. 99; Traiman v. Rappaport, 3 Cir., 41 F.2d 336, 71 A.L.R. 475. As is said in American & English Encyclopedia of Law, 2d Ed., vol. 15, p. 988: “Where a contract which is entire contains a stipulation or agreement which is illegal, and which therefore is not severable from the balance of the contract, such illegal stipulation or agreement cannot be ignored and the other provisions of the contract enforced; the illegal stipulation or agreement in such a case penetrates and corrupts the whole contract and vitiates it as an entirety.”

On the other hand, a contract which is divisible, and a part within and a part without the statute of frauds, may be enforced as to the part which is good without regard being paid to that which is bad. In such cases it is not of such great importance to ascertain whether the one portion would not have been entered into without the other as to ascertain whether they are in their nature separate and distinct. In a transaction which involves the making of different contracts at the same time and as a part of the transaction, and they are of such nature that they can be reasonably considered as separate, those which are not banned by the statute will be enforced, and the others avoided. Adams v. Weaver, 117 Cal. 42, 48 P. 972; Ryan v. Walker, 35 Cal.App. 116, 169 P. 417; Lowman v. Sheets, 124 Ind. 416, 24 N.E. 351, 7 L.R.A. 784. Thus, in Haynes v. Nice, 100 Mass. 327, 1 Am.Rep. 109, a parent promised to pay for the past and future board of a child at a certain weekly rate and the court there held that the promise was clearly severable, one part being within the statute of frauds and the other without. Recovery was allowed for the future board but none for the past as being a promise to pay the debt of another.

If a portion of a transaction, or a promise is capable of being executed or closed, separately from the remaining portions, it is under ordinary circumstances held to be separable and enforceable independently of the balance of the transaction. This is because the independent portions of the transaction are in effect separate contracts.

In the contract before us Dr. Drucks made two distinct promises. He promised that if he ever became unable to care for the dog, Mike, he would turn him over to the plaintiff who promised to give him the specified care as long as he lived, and, for which care, the doctor promised to pay a reasonable charge. The second promise was that if he should die, he would turn the dog over to the plaintiff to be by him cared for as specified for which he would pay a reasonable sum. Neither of these promises is made to depend upon the existence of the other. The first part of the agreement could well have been fully performed by both parties without the second part ever having been made. Similarly the second part, if it had been otherwise valid, could have been completely executed and closed without the existence of the first. The lack of interdependence between the two promises makes the contract severable. Sterling v. Gregory, 149 Cal. 117, 85 P. 305; Ward v. Ward, 94 Colo. 275, 30 P.2d 853; Straus v. Yeager, 48 Ind.App. 448, 93 N.E. 877. The fact that the second part is invalid does not militate against the enforcement of the independent portion which is good.

The contention that Dr. Drucks would not have entered into the one portion of the contract without the other portion being included finds no support either in the contract itself or in the circumstances connected with its making. As pointed out, the two portions of the agreement are distinct and separate. There is nothing to indicate that one would not have been made but for the existence of the other. The rule invoked can only apply when there is an interdependence between the several portions of the agreement to the extent that one portion cannot be extricated from the whole without an interference with the execution and closing of the other portions. The contract presented here lacks that interdependence between its two parts which is necessary to sustain this contention.

The appellant makes the added point that the first portion is not clear of the statute for the reason that it was not fully performed during the lifetime of Dr. Drucks. The rule is that if performance is possible within the lifetime the prohibition of the statute does not apply. The fact that complete discharge of the obligation does not occur within the lifetime is of no consequence. The same situation prevails with reference to contracts not to be performed within a year. If the contract is performable within a year the statute does not apply. In Gaskins v. Security–First National Bank, 30 Cal.App.2d 409, 86 P.2d 681, 685, the court had before it a contract for the support of minor children of an incompetent during their minority. In disposing of a contention that the contract was not to be performed within a year, the court said: “In the case at bar the contract was to care for the minor children of the incompetent during their minority with payment to be made when the youngest attained majority. Obviously such a contract might be fully performed in one year from the date of its execution, as, for instance, would be the case should all the minor children have died within the first year. In 27 Corpus Juris 184 it is said with reference to the statute of frauds: ‘A parol agreement to board, or to support * * * a person during his life or other indefinite period, is regarded as having been made by the parties thereto in contemplation of the possible contingency of the person's death within the year, and, being capable of complete performance within a year, is not within the statute. The same is so of an oral contract to support a person until he reaches his majority or attains a certain age, the contingency being implied that he may die within the year. The same contingency of death being implied, an oral agreement to pay for the maintenance or education of a child is not within the statute. It has even been held that an agreement to support another for a fixed period greater than one year is not within the statute’.”

In this case the care of the dog was undertaken during the lifetime of Dr. Drucks. At the time the dog was turned over to the plaintiff no one was able to foresee when the doctor would recover or when he would die. Nor was anyone able to foresee when the dog would die. As stated in the Gaskins case, a parol agreement for care, such as we have here, is regarded as having been made by the parties thereto in contemplation of the possible contingency of the death of the person or animal to be cared for within the time limited by the statute. Clearly, the first portion of the contract is not within the statute.

The further point is made that the provision of the contract which is clear of the statute of frauds is too uncertain to be enforceable. The appellant appropriately points out that the time when the plaintiff should take over and care for the dog depends on when the doctor might be unable to render this care. This point of time, he argues, is not fixed by the contract and is not ascertainable. If this time is reasonably ascertainable, there is of course no merit in the point. In this connection we are unable to make a perceptible distinction in principle between those cases in which a promisor promises to perform when he is able, and this case in which the promisor promises to perform when he is unable to perform certain other acts. The rule has been consistently adhered to by the courts of this country and of Canada that when the time of performance is made to depend on when one is financially able, the contract is not so indefinite or uncertain as to be unenforceable. Van Buskirk v. Kuhns, 164 Cal. 472, 129 P. 587, Ann.Cas.1914B, 932, 44 L.R.A., N.S., 710; Mock v. Trustees, 252 Ky. 243, 67 S.W.2d 9, 94 A.L.R. 716 and note 721.

In cases such as this, as stated by our Supreme Court in McIllmoil v. Frawley Motor Co., 190 Cal. 546, 213 P. 971, 972: “The law does not favor, but leans against, the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to carry into effect the reasonable intentions of the parties if that can be ascertained.” In support of this policy of the law may also be cited, Sutliff v. Seidenberg, Stiefel & Co., 132 Cal. 63, 64 P. 131, 469; Pease v. Lindsey, 129 Cal.App. 408, 18 P.2d 717; Meyers v. Nolan, 18 Cal.App.2d 319, 63 P.2d 1216.

The attendant circumstances indicate very clearly that Dr. Drucks intended that his dog should be taken care of and not abused if for any reason he should not be able to care for him, and that the plaintiff was cognizant of these intentions. The two men had been associated in training the dog from the time he was a pup. Both recognized his superior qualities and breeding. The dog undoubtedly had formed attachments for his trainer in addition to the affection bestowed upon his master. Dr. Drucks was alone in the world. He paid frequent visits to the cemetery in which his mother lay buried. Apparently no relative came near to offer cheer or encouragement in his illness. He had to depend upon friends and neighbors to help him to the hospital. His dog was his close friend and companion, and his consolation in his darkening days. Nothing is more natural than that the doctor visualizing a protracted illness and days and nights within hospital walls, should intend the plaintiff to render that care which he could not give.

Our courts in many cases have paid glowing tribute to the fidelity of the dog and have praised his many virtues, but we, in ascertaining the intention of the parties, are to be controlled by the circumstances of the case alone. As is said in Mayor, etc., of City of Washington v. Meigs, reported in 8 D.C. 53, 1 McArthur 53, 29 Am.Rep. 578, “History informs us of noble acts of fidelity and affection performed by some sentinel of the class under consideration. Our attention has been called by our brother, Olin, to the event of so much interest to the world, and to the cause of freedom of opinion, and to the exercise of a conscientious faith, the rescue from the grasp of the enemies of toleration of William of Orange, on the morning of the 12th September, 1572, by the action of a little dog. The Spanish army, under the command of Alva, invading the Netherlands, and the army of patriots under the command of the prince, were encamped near the city of Mons. The plan was formed for the surprise of the camp of the patriots and the capture or assassination of William, and for this purpose a band of six hundred disguised men were placed under the command of Julian Romero. The historian of the Rise of the Dutch Republic narrates that, near the hour of two o'clock in the morning, ‘the boldest, led by Julian in person, made at once for the prince's tent. His guards and himself were in profound sleep, but a small spaniel, who always passed the night upon his bed, was a more faithful sentinel. The creature sprang forward, barking furiously at the sound of hostile footsteps, and scratching his masters' face with his paws. There was but just time for the prince to mount a horse which was ready saddled and to effect his escape through the darkness before his enemies sprang into the tent. His servants were cut down, his master of the horse and two of his secretaries who gained their saddles a moment later, all lost their lives, and but for the little dog's watchfulness, William of Orange, upon whose shoulders the whole weight of his country's fortunes depended, would have been led within a week to an ignominious death. To his dying day, the prince ever afterward kept a spaniel of the same race in his bed–chamber.’ ” The Supreme Court of the United States has paid its tribute to this friend and protector of man. Said the learned Justice who delivered the opinion in Sentell v. New Orleans, etc., R. Co., 166 U.S. 698, 17 S.Ct. 693, 694, 41 L.Ed. 1169: “The higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and, above all, for their natural companionship with man.”

During the course of his illness Dr. Drucks requested of Joe Repose, a friend, that if anything happened, to take Mike out to the kennels. It was pursuant to this request, on the day Dr. Drucks was taken to the hospital for an emergency operation, that he gave the dog into the keeping of the plaintiff. After he came back from the hospital the doctor did not send for the dog, but left him in the plaintiff's care where he had been placed and made no effort to remove him.

The acts of the parties done under it where there is any doubt as to the meaning of the terms of a contract, afford one of the most reliable means of arriving at their intention. This rule is clearly stated by the Supreme Court of this state, speaking through Mr. Justice Lorigan, in Mitau v. Roddan, 149 Cal. 1, 84 P. 145, 150, 6 L.R.A.,N.S., 275, where it is said: “Parties to a contract have a right to place such an interpretation upon its terms as they see fit, even when such an interpretation is apparently contrary to the ordinary meaning of its provisions. And in all cases where the terms of their contract, or the language they employ, raises a question of doubtful construction, and it appears that the parties themselves have practically interpreted their contract, the courts will follow that practical construction. It is to be assumed that parties to a contract best know what was meant by its terms, and are the least liable to be mistaken as to its intention; that each party is alert to his own interests, and to insistence on his rights, and that whatever is done by the parties contemporaneously with the execution of the contract is done under its terms as they understood and intended it should be. Parties are far less liable to have been mistaken as to the intention of their contract during the period while harmonious and practical construction reflects that intention, than they are when subsequent differences have impelled them to resort to law, and one of them then seeks a construction at variance with the practical construction they have placed upon it. The law, however, recognizes the practical construction of a contract as the best evidence of what was intended by its provisions. In its execution, every executory contract requires more or less of a practical construction to be given it by the parties, and when this has been given, the law, in any subsequent litigation which involves the construction of the contract, adopts the practical construction of the parties as the true construction, and as the safest rule to be applied in the solution of the difficulty. Mayberry v. Alhambra, etc., Co., 125 Cal. [444] 446, 54 P. 530, 58 P. 68; Keith v. Electrical Engineering Co., 136 Cal. [178] 181, 68 P. 598.” The cases of Herrlein v. Tocchini, 128 Cal.App. 612, 18 P.2d 73, Kales v. Houghton, 190 Cal. 294, 212 P. 21, are to the same effect. While the practical construction placed upon the terms of the contract is not conclusive, such construction is entitled to great or controlling weight where the questioned provision is of some uncertainty. Laiblin v. San Joaquin Agr. Corp., 60 Cal.App. 516, 213 P. 529. Where the contract is oral, any acts, conduct, or declarations of the parties indicating mutual intent and understanding are of added significance. If there was any uncertainty as to when the agreement between the parties was to become effective it was dispelled and certainty established by the delivery of the dog to the plaintiff and his rendering the care and keep which the contract called for. By their own acts the parties determined the time of performance. 12 Am.Jur. 558, secs. 67, 68.

Argument is made by counsel for the appellant that because of the claimed uncertainty equity would not compel the specific performance of the contract. After the dog was delivered to the plaintiff there remained nothing to compel. The dog was delivered into his keeping and up to the date of the death of the doctor he had done everything that by the terms of the contract he was required to do. There only remained for him to collect for the care already given, and to continue to give the care as he had agreed. In any event, there was such a partial performance of the terms of the contract as to cure any uncertainty and to warrant specific performance in case it would lie. Pearsall v. Henry, 153 Cal. 314, 95 P. 154, 159.

Subsequent to the presentation of the claim against the estate, and prior to the filing of this action, the wife of the plaintiff executed the following document:

“July 8, 1932.

“In consideration of the sum of $1.00 to me in hand paid by my husband C. A. Roy, I hereby agree that the claim against the estate of Edward S. Drucks (No. 71031 Alameda County) on account of the Doberman dog “Mike” and all proceeds thereof is the separate property of my husband C. A. Roy.

“Elizabeth Roy

“Wife of C. A. Roy.”

Mrs . Roy was sworn as a witness and testified in the case over the objection of counsel for the defendant. At the close of the proceedings a motion to strike from the the record all of her testimony was made and denied. The basis for the objection and motion is that the instrument evidences an assignment by her of her community interest in the contract to her husband, and as such an assignor she is incompetent to testify under the provisions of subd. 3, sec. 1880 of the Code of Civil Procedure. The disqualification claimed by the appellant is purely statutory. All persons who are not under the statutory ban are deemed competent witnesses. Sec. 1879, Code Civ.Proc. Since section 1880 is a limitation upon a fundamental right it is to be strictly construed. Unless the document set forth constitutes an assignment of her community interest making her an assignor of the claimant the objection to the testimony of the witness was properly overruled and the motion to strike properly denied. To assign means to transfer or set over. To relinquish is to surrender or abandon. Community property in this state is now held by both husband and wife in a community estate in which both have a present community interest. This interest is of such a character that either may step out of the community entirely, with reference to property only, and relinquish all right in the community estate to the other. Likewise, a portion only of the community estate may be relinquished or abandoned by one spouse to the other. Agreement only is necessary to effect such relinquishment. Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, 103 P. 190; Wren v. Wren, 100 Cal. 276, 34 P. 775, 38 Am.St.Rep. 287; Young v. Young, 126 Cal.App. 306, 14 P.2d 580; Gray v. Perlis, 76 Cal.App. 511, 245 P. 221; Smith v. Smith, 47 Cal.App. 650, 191 P. 60; Schipper v. Penkalski, 46 Cal.App.2d 28, 115 P.2d 231. As between persons who do not occupy the marital status and who do not enjoy the privilege of holding property in a community estate there can be no transmutation of rights in property in this manner. Transfer is the only method by which a change in property status between them may be effected, they not being endowed with any of the plenary powers granted to husband and wife by sections 158 and 159 of the Civil Code. At the time the wife gave her testimony she held no interest in the contract, and was not an assignor of her husband. The rulings complained of were properly made.

There are no other points which appear necessary to be considered.

The judgment is affirmed.

B. C. JONES, Justice pro tem.

PETERS, P. J., and WARD, J., concurred.