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FREEMAN et al. v. RIVER FARMS CO. OF CALIFORNIA et al.*
Plaintiffs brought this action upon a contract alleged to have been made by the defendant company. Upon a trial by the court sitting without a jury, plaintiffs had judgment, and from said judgment defendant appeals.
The defendant company was the owner of certain land in the Sacramento River Westside Levee District. In August, 1930, plaintiffs entered into a contract with the district whereby they agreed to do certain levee work for the sum of approximately $7,000. The contract price was to be paid in warrants of the district. Said work was completed and the warrants were issued and delivered to plaintiffs. Plaintiffs sought by this action to enforce an alleged agreement on the part of the defendant company to purchase said warrants at a discount of 5 per cent.
It was alleged in the complaint that the defendant company had agreed with the district to purchase said warrants at such discount and that said agreement was made expressly for the benefit of plaintiffs. Upon the trial plaintiffs were permitted to amend their complaint and allege that the defendant company had agreed with plaintiffs to purchase said warrants. Plaintiffs' claims were based upon an alleged telephone conversation with Dr. E. L. Dow, who was then president of the defendant company. Dr. Dow died in December, 1930, and prior to the commencement of this action. The defendant company took the position that Dr. Dow did not make the alleged agreement, that if Dr. Dow purported to make such an agreement on behalf of the defendant company, he had no authority to do so, and also that the alleged oral agreement was unenforceable under the statute of frauds. The trial court nevertheless found in favor of plaintiffs, and entered a judgment awarding plaintiffs the full alleged contract price and providing for the delivery of the warrants concurrently with the payment of the judgment.
Appellant seeks a reversal of the judgment upon several grounds, but we deem it necessary to consider only one of them. Appellant contends that the alleged agreement was unenforceable by reason of the statute of frauds and in our opinion this contention must be sustained. At the time the alleged agreement was made, section 1624, subd. 4, of the Civil Code was the Code section governing such agreements. While the provisions governing such agreements were incorporated into section 1624a in 1931 (St. 1931, p. 2261), the last-mentioned section is substantially the same for the purposes of this discussion as the section in effect prior to 1931. Giving full effect to the testimony adduced by respondents, it showed an oral agreement to purchase warrants for the sum of approximately $7,000. It is conceded that appellant had never received or accepted any of said warrants and had not paid any part of the purchase price, and we are therefore of the opinion that said agreement was unenforceable under the terms of the statute.
Respondents contend that appellant is estopped to set up the statute of frauds as a defense, but we have found no authority to support respondents' contention under the facts presented here. Respondents take the position that as they had performed the work under their contract with the levee district, appellant is estopped from relying upon the statute. We believe this position to be untenable. Assuming, as do respondents, that under their alleged agreement with appellant, respondents agreed to do said work for the levee district (which assumption appears to be contrary to the fact), performance by one party of an alleged agreement does not always remove the case from the operation of the statute and ordinarily only such performance as is specified in the statute itself is sufficient for that purpose. O'Brien v. O'Brien, 197 Cal. 577, 241 P. 861; Baker v. Bouchard, 122 Cal. App. 708, 10 P.(2d) 468; Forbes v. City of Los Angeles, 101 Cal. App. 781, 282 P. 528; Trout v. Ogilvie, 41 Cal. App. 167, 182 P. 333; Booth v. A. Levy & J. Zentner Co., 21 Cal. App. 427, 131 P. 1062. “Furthermore, it is clear that, in order to take a contract out of the operation of the statute of frauds, the acts relied upon as establishing part performance must be unequivocally referrable to the contract. If such acts, though in truth done in performance of a contract, admit of an explanation without supposing a contract, they do not generally constitute such part performance as to remove the case from the operation of the statute.” Baker v. Bouchard, supra, 122 Cal. App. page 711, 10 P.(2d) 468, 469; see, also, O'Brien v. O'Brien, supra; Trout v. Ogilvie, supra.
In order to establish an estoppel, proof must be made of factors other than mere part performance. The rule as set forth in Browne on Statute of Frauds (5th Ed.) § 457a, has been cited with approval in several cases. Zellner v. Wassman, 184 Cal. 80, 87, 193 P. 84; Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88, 134 Am. St. Rep. 154; Keller v. Gerber, 49 Cal. App. 515, 523, 193 P. 809. Said rule is as follows: “A plaintiff, * * must be able to show clearly not only the terms of the contract, but also such acts and conduct of the defendant as the court could hold to amount to a representation that he proposed to stand by his agreement and not avail himself of the statute to escape its performance; and also that the plaintiff, in reliance on this representation, has proceeded, either in performance or pursuance of his contract, to so far alter his position as to incur ‘an unjust and unconscientious injury and loss, in case the defendant is permitted after all to rely upon the statutory defense.”’ The evidence here fell far short of establishing an estoppel. It is sufficient to state, first, that there was nothing to indicate a representation on the part of appellant that it proposed to stand by the alleged agreement and not avail itself of the statute, and, second, that it did not appear that respondents had done anything which would cause them to incur injury or loss of any kind. In short, we find no pleading, proof, or findings of fact giving rise to an estoppel, and therefore conclude that respondent may not urge the doctrine of estoppel in support of the judgment.
The judgment is reversed.
SPENCE, Justice.
We concur: NOURSE, P. J.; STURTEVANT, J.
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Docket No: Civ. 9582.
Decided: April 23, 1935
Court: District Court of Appeal, First District, Division 2, California.
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