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District Court of Appeal, Second District, Division 2, California.

CUMMINS v. LEVY et al.

LEVY et al. v. CUMMINS et al.

Civ. 19133.

Decided: April 01, 1953

Bernard C. Brennan, Los Angeles, Caidin & Bloomgarden, Beverly Hills, and Newton Kalman, Los Angeles, for appellants.

The issues raised by appellants in their petition for rehearing are largely those raised in their previous briefs and expressly or impliedly rejected by this court. The claim that ‘representations and statements of intention’ made by appellant Adeline are inadmissible by virtue of the Statute of Frauds or of the parol evidence rule is without support in view of the fact that appellants proposed and demanded reformation of the agreement. Hence, such ‘representations and statements of intention’ are admissible to explain the contents of that writing. It is elementary that appellants cannot assert that a written agreement does not represent the true intent of the parties and in the same breath object to respondents' explanation of that intent.

However, the opinion should be corrected in one particular. The word ‘easement’ in the first sentence of paragraph 4 should be changed to driveway.

It is therefore ordered that the word ‘easement’ be stricken from the first sentence of paragraph 4 on page 5 and in lieu thereof, the word driveway be and is substituted.

Rehearing is denied.


FOX, J., did not participate.