HORACEK v. SMITH (1948)

This is an appeal from a judgment on a jury verdict for plaintiff in the sum of $5,970.00 in an action based upon a contract of employment made on or about October 24, 1928.

The original complaint alleges: ‘That plaintiff entered upon her employment under said contract and duly performed all of the conditions on her part. That about the month of August, 1930, defendants advised plaintiff that they had met with financial reverses and could no longer pay her $75.00 per month that if she would continue to serve them at whatever they could afford to pay, they would make up the difference when their financial conditions improve. That for about five years thereafter plaintiff continued to serve said defendants in accordance with said contract of employment, during which time defendants paid her an average of about $12.00 per month. That thereafter, for about five years, plaintiff served said defendants in accordance with said original contract, during which time she received no monetary consideration whatever. That during this latter period, defendants promised plaintiff that if she would continue to serve them, they would never send her away from their home and that they would, when advanced age prevented her from working, see that she had room and board in their house, and whatever else she needed, for the balance of her natural life. That plaintiff relied on this promise and continued to serve defendants in the capacity of housekeeper to about January, 1945. That for the last period of service, consisting of about five years defendants paid small amounts to plaintiff at irregular intervals, which in all would average about $12.00 monthly. That in January, 1945, defendants advised plaintiff that they had no further use for her services and at that time packed her belongings and ejected her from her room, and have ever since prevented her from carrying out her contract and from occupying a room at their aforesaid premises. That plaintiff then demanded the back wages that accrued to her since August, 1930, approximately $11,600.00, but defendants refused and still refuse to pay said amount, to her damage in the said sum of $11,600.00.’

By their answer defendants set forth that ‘on or about the 1st day of July 1930, the defendants engaged the services of plaintiff as a housekeeper for compensation consisting of food and lodging and $75.00 per month.’ As a separate defense they allege that during the depression they informed plaintiff that it was impossible for them to continue to pay plaintiff $75.00 per month; that plaintiff's wages were successively reduced $10.00 per month at intervals of 3 or 4 months until in 1933 defendants paid plaintiff $25.00 per month in addition to food and lodging; that said reductions were made after prior notice to plaintiff who accepted them as final; that defendants never had themselves out as obligating themselves to make up the amount of the reductions; that in the middle of 1933 their financial affairs required the renting of their Hillsborough home and moving to an apartment in San Francisco, at which time they notified plaintiff that they would no longer require her services, but because of plaintiff's protestations they informed her that she could live with them but that they did not require her services and could not afford to pay her any regular salary; that plaintiff thereafter lived with defendants with full knowledge as to her compensation; that plaintiff left defendants' home in August 1936; that in February, 1937, plaintiff solicited of defendants to again, enter their home; upon plaintiff's pleading, defendants told her they ‘would provide her with food and lodging and pay her such sums as they believed they were able for such services as the plaintiff might be able to render from time to time’; plaintiff re-entered defendants' home but her services were sporadic because of her health; that January 9, 1945, plaintiff accepted employment elsewhere but left some of her belongings in defendants' home; that August 31, 1945, plaintiff removed said belongings; and ‘that the said defendants first learned of the alleged claim of the plaintiff herein and of her demands in relation thereto, in a letter to said defendant Victor B. Smith, from plaintiff's attorney, E. C. Mahoney, dated the 19th day of October 1945; that all obligations of the said defendants arising from any and all agreements and relationships with the plaintiff herein have been duly performed.’ Another separate defense sets forth in addition to the foregoing that on the occasions when defendants told plaintiff that they had no need for her services, she became upset, and they therefore acquiesced in plaintiff's continued sharing of their home more nearly in the status of a member of defendants' family; ‘that the plaintiff is therefore now estopped in her attempts to establish any such supposed claims or rights in her behalf now belatedly alleged to have existed or arisen out of said relationship between the plaintiff and the defendants.’ A final separate defense alleges that the action is barred by Code of Civil Procedure, sections 339(1) and 434.

During the trial the sufficiency of the complaint was discussed by counsel. With leave of court the complaint was amended to include the following allegations: ‘That about the month of December, 1944, defendant Florence Smith, advised plaintiff that after the first of the coming year the income of defendants would be materially increased and that they would then be in a position to pay her whatever was owing to her. That plaintiff relied upon the foregoing representations and believes that defendants' financial condition did improve during the year 1945 to the point where they could pay her the money claimed to be owing.’

Defendants' argument that no cause of action was pleaded or proved is based upon the rule that no cause of action accrues upon a promise to pay ‘when able’ until said condition is performed; hence performance of such condition must be pleaded and proved. They cite Van Buskirk v. Kuhns, 1913, 164 Cal. 472, 129 P. 587, 44 L.R.A.,N.S., 710, Ann.Cas. 1914B, 932. The complaint in that action alleged that the defendant borrowed money which was to be repaid whenever he ‘should be able to do so.’ In reversing a judgment for plaintiff for the amount loaned, the court first holds that the statute of limitations does not run until the debtor is able to pay since no cause of action accrues until the condition of the debtor's ability to pay has been performed. The court then rules that the very fact that prevents the statute of limitations from running also prevents plaintiff from maintaining his action—plaintiff was required to plead the debtor's ability to pay as a prerequisite to maintaining his action. Accord, Rodgers v. Byers, 127 Cal. 528, 60 P. 42. The Van Buskirk case has been followed in Gause v. Pacific Gas & Electric Co., 60 Cal.App. 360, 368, 212 P. 922 (conditional agreement to furnish water); Cantwell v. Gage, 111 Cal.App. 209, 212, 295 P. 375 (premium payable after oil well came in) and Maurer v. Bernardo, 118 Cal.App. 290, 294, 5 P.2d 36 (promise to pay debt when financially able); see, also, Goodfellow v. Goodfellow, 219 Cal. 548, 554, 555, 27 P.2d 898.

Here, as in the Van Buskirk case, it is proper for the reviewing court to consider the sufficiency of the complaint to state a cause of action although no demurrer was filed raising the question. Code Civ.Proc. sec. 434. Unlike the Van Buskirk case, the present complaint, as amended, alleges that plaintiff was advised that after the first of 1945 ‘the income of defendants would be materially increased and that they would then be in a position to pay her whatever was owing to her.’

Defendants urge that plaintiff's pleading is defective in failing to allege that the defendants' financial condition did improve during the year 1945 to the point where they could pay plaintiff the money claimed to be owing, and in predicating plaintiff's alleged belief wholly on a statement alleged to have been made in December, 1944, when according to plaintiff's pleading defendants' financial condition had not so improved. Any insufficiency in plaintiff's pleading in this respect could have been corrected had the matter been brought to the trial court's attention. Unlike the objection that the complaint fails to state a cause of action, the defect urged by defendants is waived by their failure to demur. Code Civ.Proc. sec. 434; Berryman v. Quinlan, 29 Cal.App.2d 608, 85 P.2d 202. That no prejudice resulted to defendants from the fact that by her amended complaint plaintiff stated that she ‘believes that defendants' financial condition did improve during the year 1945 to the point where they could pay her the money claimed to be owing’ appears from the circumstance that the actual facts were within defendants' knowledge. 41 Am.Jur., p. 316, sec 40; Swars v. Council of the City of Vallejo, 64 Cal.App.2d 858, 149 P.2d 397.

Before leaving the question of the sufficiency of the complaint, it may be observed that neither the Van Buskirk case nor any other case cited consider the question as to what allegations are required in order to satisfy the requirement that where a conditional promise is set forth in a pleading, performance of the condition must be pleaded. Two sections of the Code of Civil Procedure are helpful: (Sec. 452) ‘In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.’ (Sec. 457) ‘In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.’

At the close of plaintiff's case a motion for nonsuit was made directed to plaintiff's failure to plead or prove defendants' ability to pay. Thereafter counsel for defendants stated: ‘I would like the case tried to completion.’ The discussion thereon resulted in further proceeding with the case, defendant's presentation of the defense and the amendment previously referred to. The trial court's failure to formally rule upon said motion, even if error, was harmless since there was no merit in the motion. Reclamation Dist. No. 535 v. Clark, 155 Cal. 345, 100 P. 1091.

At the conclusion of the trial the jury was instructed that ‘A promise to ‘pay a debt when able’ is conditional and the statute of limitations does not commence to run until the debtor is able to pay * * * it is incumbent upon the defendants to show when they had the ability to pay in order to establish the date from which the statute commenced running.' That the jury was capable of understanding such instructions and applying same to the evidence is presumed. 24 Cal.Jur., p. 795, sec. 75. It must also be presumed that the jury did apply this instruction as it considered the evidence which established the following sequence of events: In October, 1928, plaintiff first went to the Smith residence in San Mateo County, where defendant Florence Smith employed her as housekeeper on behalf of her father-in-law, J. K. Smith. Plaintiff was to receive $75.00 a month, plus board and room. On the first of July, 1930, J. K. Smith died, but the defendants continued to live in the premises at 984 Baileyana Road, and for the remainder of 1930 paid plaintiff $75.00 a month. In this respect Mrs. Smith testified on cross-examination: ‘She was left to us the same as the house. She had been in my home when my father-in-law was there, and she continued on. Q. You inherited her? * * * A. That is right. Q. * * * why didn't you fire her? A. Because of her great affection for me any my children.’ Defendants have two daughters, Byra Jean and Betty, and a son, ‘J. K.’ Plaintiff testified that in 1931 she received checks for $25.00 each month, but when faced with cancelled checks produced by defendants which showed that in 1931 she was generally paid $65.00 a month, she testified on cross-examination that she began receiving $25.00 a month ‘about 1932 * * *. Maybe the end of 1932.’ When plaintiff's wages were reduced, plaintiff testified that Mrs. Smith said, ‘Josephine, I couldn't pay you any more $75.00 a month.’ Plaintiff testified: ‘I told Mrs. Smith she could pay me less than $75.00 and when the time would Mr. Smith be promoted he could pay me the difference. Q. And did Mrs. Smith say anything to that? A. She go on the telephone again and she came back and she said, ‘Josephine, would you make it $25.00?’ * * * A. I said, ‘Yes.” In April, 1934 defendants leased the Hillsborough residence with option to buy, and moved to San Francisco, where they provided plaintiff with a room, but paid her $12.00 a month. The change was made for financial reasons; at this time no conversation was held between the parties as to any accumulated credit due plaintiff. In San Francisco plaintiff had sacro-iliac trouble. In May, 1935, the Smiths moved back to Hillsborough as their tenant failed in his payments. Plaintiff had her old room; she received $12.00 a month. Plaintiff's deposition brings out that sometime in 1936 plaintiff asked defendants for money—‘I said they don't pay me nothing, and I called $12 nothing.’ The evidence shows that in October, 1936, plaintiff went to the Community Hospital. According to plaintiff, Mrs. Smith attempted to have her committed to an insane asylum. Plaintiff's explanation of Mrs. Smith's conduct is found in her testimony that ‘when I ask for money, she want put me in crazy house.’ Mrs. Smith described plaintiff as being ‘high hysterical’ at this time. Later in 1936, after plaintiff was released from the hospital, she visited relatives in Southern California and in Chicago; about June, 1937, she took a room at the St. Matthews Hotel in San Mateo, and after seeing one of the Smith children in the street returned to the Smith residence for mail. Plaintiff testified that defendants asked her to stay, so she remained, but she received no pay until 1941. In this connection she testified: ‘Q. When you had your conversation with Mr. Smith in your room, was anything said about your wages that you would be paid when you came back to work? A. * * * I should come back and start to work on the old basis. Q. Did he use those words? A. Yes sir.’ Mrs. Smith testified that a man from Twin Pines in Belmont who had examined plaintiff when she was hospitalized told her not to rehire plaintiff, but when plaintiff returned in June, 1937, ‘and she said it was her home and she loved us and our house and wanted to come back and against my husband's judgment I went to her and told her ‘yes' * * * and I told her our circumstances had not improved and we couldn't afford to pay her * * *.’ One of the most extensively described conversations occurred in August, 1940, prior to the wedding of defendants' daughter Betty. Plaintiff testified that Mrs. Smith gave her instructions as to what had to be done for the wedding. Plaintiff replied, ‘Mrs. Smith * * * you tell me everything what has to be done, but you don't say one word about any money.’ Mrs. Smith said, ‘Josephine, are you going to expose me now?’ Mrs. Smith's version of what happened lends some support to plaintiff's testimony: ‘* * * I went into the kitchen and in tirades she told me all the things she had done for years and I asked her then what was the matter and I said, ‘I don't know how I can go on, I don't know what to do,’ then she said, ‘You say nothing about money,’ I said, ‘Listen, Mr. Smith is going to pay you, are you going to continue on like this so all the neighbors know the condition in our home?’ There was nothing more said when she heard she was going to get paid.' Plaintiff testified that after the wedding (1940–1941) Mrs. Smith became ill—‘Nervous disorder. They called it fits, I think.’ From 1941 throughout 1944, plaintiff received $15 a month, plus uniforms, board and room. In December, 1941—around Christmas—Mrs. Smith brought two roses to plaintiff who was sick in bed, and made the following promise to plaintiff. ‘Josephine, I am going to make you nice drapes and we are going to put you Venetian blinds in your room and fix it nice and we are going to build you a hot house and make a door right there from your room, so you will be able to be with your flowers.’ When questioned further, plaintiff testified: ‘Q. Now after December 1941, did you ever make any demand on Mr. or Mrs. Smith for any accumulated back wages? A. 1940. Q. You are referring to your testimony about Betty's wedding? A, Yes sir. Q. That is the only time? A. Mrs. Smith feel rather badly and I was afraid to mention it again.’ Plaintiff testified that in December, 1944, Mrs. Smith told plaintiff ‘there would be big changes and Mr. Smith is going to be promoted.’ From January to August of 1945, plaintiff worked in the home of defendants' oldest daughter, Byra Jean, her husband, and their children. They paid her $75.00 a month plus special checks averaging $15.00 a month. On August 12, 1945, plaintiff returned to Hillsborough and found that her bedroom was being used by defendants. Plaintiff testified that Mrs. Smith said, ‘I never promised you anything. I didn't give you anything and you was a fool you done it.’ Plaintiff further testified that she was told to leave by the end of the month (August) at which time Mr. Smith would leave for South America. Apparently after plaintiff's cries and tears, defendants told plaintiff she could stay two more months while Mr. Smith was in South America. Mrs. Smith said she was going to stay with Byra Jean. Plaintiff testified that she told defendants that she could not stay in the Hillsborough house—‘Everything will haunt me here.’ Mrs. Smith testified that when plaintiff saw her room being painted over she asked ‘Why you done this to me’ and became very excited and would not listen to defendants' explanation for their conduct. Mrs. Smith told her ‘You are a fool, make peace with yourself.’ A good summary of what happened appears in the following testimony of Byra Jean: ‘I followed Josephine in her room and when she saw that the bed was gone, she went into a rage, throwing her purse across the room and she had a bag of preserved fruit which she dropped and she became hysterical and I tried to soothe her. She wanted to know what she had done that my family was putting her out. I told her the family was not putting her out. Mother came into the room and tried to soothe her too, during which time she brought a letter * * *.’ The letter referred to was produced by plaintiff on her direct examination and reads in part: ‘I would never send you from my home.’ It was signed, ‘Florence Smith.’ The letter is dated January 26, 1945.

Mr. Smith's testimony was primarily directed to the question whether defendants were financially able to pay plaintiff the amount she sought. He testified that from 1931 to about 1935 he received $225 a month; from 1935 through 1936 he received $350 a month; from 1937 through 1940 he received $400 a month; from 1941 through 1944 he received $500 a month; April 16, 1944, he began getting $550 a month; and November 1, 1945, he became entitled to $700 a month. He added that the $400 he received in December 1936 went further than $700 in 1946. He also testified that defendants had no money with which to pay plaintiff.

Defendants cite Nevills v. Moore Min. Co., 135 Cal. 561, 67 P. 1054, in which the Supreme Court held that it could not say that the trial court erred in finding that there was neither an express nor an implied agreement between alleged partners for alleged services. It is also noted that ambiguous and uncertain terms of a promise must be interpreted in the sense that the promisor believed the promisee understood it. Civil Code, sec. 1649. In this case the ambiguity and uncertainty is not in the words of the promisor but rather in the testimony of plaintiff.

The judgment in the present action finds support in the pleadings, which allege that plaintiff agreed with defendants to act as a servant for the sum of $75 per month plus board and room. The pleadings also show that for about fifteen years prior to 1945 plaintiff received less than $75 per month.

Defendants devote considerable attention to the improbability of plaintiff's story in which discrepancies appear relative to dates and statements. It is suggested that plaintiff's testimony is not based upon definite and certain statements but rather it is an epitomization of facts which to a great extent must be based upon surmise. However, the following testimony appears:

‘Q. This was the beginning of 1932? * * *

‘Q. Did you hear Mrs. Smith mention the fact that when Mr. Smith's salary would be increased to whatever it would be, that at that point of time he would make up the difference over the years between twenty five and fifty dollars a month? A. (Plaintiff) Yes, sir.

‘Q. That was mentioned? A. Yes, sir.

‘Q. Who mentioned that? A. Mrs. Smith. * * *

‘Q. * * * did you have any conversation with Mr. or Mrs. Smith at that time (1937) regarding payment for your services? A. Well, Mr. Smith this time said everything will be just like before. * * *

‘Q. When you had your conversation with Mr. Smith in your room, was anything said about your wages that you would be paid when you came back to work? A. I should come back and start to work on the old basis.

‘Q. Did he use those words? A. Yes sir.’

Defendants summarize the evidence on appeal in a form that might have had an effect upon a jury. Defendants refer to Mrs. Smith's denial of some of plaintiff's testimony; that plaintiff did not keep a record of the amounts claimed to be due and failed to remind defendants of the amount due—and to actions of plaintiff from which an inference might be drawn that plaintiff did not continue her housekeeping upon an understanding that defendants would make up the difference between the amount paid and the agreed monthly salary. Defendants lay stress upon the fact that plaintiff at one time left the home for a hospital and that on no occasion was plaintiff ejected from the Smith home. Defendants also argue that under no circumstances was Mr. Smith liable, even though the reporter's transcript contains the testimony just quoted: ‘Well, Mr. Smith this time said everything will be just like before. * * * Q. What did he [Mr. Smith] say? A. I should come back * * * I should come back and start to work on the old basis.’

A discussion of all the evidentiary points raised would merely double this lengthy opinion, and would be of no avail in view of this court's determination that there is a mass of contradicted but substantial evidence, which, if believed, supports the verdict. It is sufficient to quote from Bellon v. Silver Gate Theatres, Inc., 4 Cal.2d 1, 13, 47 P.2d 462, 468: “In reviewing the evidence on such an appeal, all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.”

Defendants' contention that the action is barred by the limitation of actions statute, Code of Civil Procedure sec. 339, subdivision 1, is based upon the contention that if the evidence does show the attainment of ability to pay plaintiff's claim, that such ability was attained more than two years prior to the filing of the action. The complaint was filed April 17, 1946, which was less than two years from November 1, 1945, the date when, according to his own testimony, Mr. Smith's salary was increased to $700 per month. The question whether defendants' financial condition improved more than two years before the filing of the complaint was left to the jury. The jury impliedly found that the financial improvement with ability to pay occurred less than two years before the filing of the complaint. There is sufficient evidence to support such finding.

Defendant Victor B. Smith objects to the refusal of the court to give an instruction to the effect that a husband is not liable for the contracts of his wife made after marriage unless secured by a pledge or mortgage of the community property executed by the husband. Civil Code, sec. 167. The applicability of such an instruction depends upon the existence of a contract solely between plaintiff and defendant Florence Smith. Such does not appear to be the case here since the answer alleges that defendants—as distinguished from Florence Smith alone—engaged the services of plaintiff as a housekeeper; that defendants were unable to pay $75.00 per month, and that defendants reduced plaintiff's compensation. Furthermore, the propriety of such an instruction as proposed by defendants need not be determined here in view of the fact that the trial court covered the subject in the following instruction: ‘In any case, before Plaintiff is entitled to any recovery against both defendants you must find that eacn of them consented to the terms of the contract; one cannot be made to stand on a contract to which he never consented. If you find that only Mrs. Smith entered into a contract with Plaintiff, and that Mr. Smith did not enter into a contract with Plaintiff, Mr. Smith cannot be held liable on the contract of his wife, unless he thereafter confirmed the same or accepted the benefits thereof.’

Defendants describe certain instructions as ‘vicious' and argue that taken as a whole the court authorized and invited the jury to award a sum of money commensurate with their sympathy for plaintiff. These instructions, which were apparently prepared by the trial judge, read: ‘It is not necessary that you find whether plaintiff entered into a contract with defendants in which they agreed to hire her as a housekeeper and pay her $75.00 a month and furnish room and board as this is admitted in the answer of the defendants. There are other issues to be determined, however, as follows: 1. Did plaintiff agree at any time after the hiring to accept less than $75.00 a month as payment in full for the monetary consideration agreed upon with defendants. 2. Did defendants agree, or lead plaintiff to believe, that when their financial condition improved they would pay plaintiff the difference between the monetary consideration originally agreed upon and the amount actually paid her during the years that she served them. 3. Did the defendant, Florence Smith, make an agreement to keep plaintiff in her home as long as defendants were indebted to plaintiff. 4. Was there an implied understanding between plaintiff and defendants that plaintiff would cancel her debt to them provided they never sent her away from their home. 5. Did plaintiff perform all of the conditions of her agreement on her part to be performed. 6. Did defendants perform all of the conditions of their agreement on their part to be performed. 7. Has plaintiff been fully compensated in accordance with whatever agreement was entered into.’

Subdivision 1 stated that an issue to be determined was whether plaintiff agreed to accept less than $75 as payment in full. Defendants argue that it told the jury ‘that if plaintiff did not so intend to commit herself the original agreement to pay plaintiff $75.00 per month continued in force and effect’ and presented a ‘false issue’ to the jury. Defendants forget that they presented this issue by their answer.

Subdivision 2 stated that an issue to be determined was whether defendants did ‘agree, or lead plaintiff to believe, that when their financial condition improved they would pay plaintiff the difference between the monetary consideration originally agreed upon and the amount actually paid her during the years that she served them.’ Defendants contend that the fault lies in the clause ‘or lead plaintiff to believe,’ since ‘this clause, in effect, told the jury that plaintiff's belief concerning what the agreement was, was the determining factor.’ Defendants' statement does not seem quite accurate. The instruction merely gives effect to Restatement, Contracts, sec. 5: ‘* * * a promise in a contract must be stated in such words either oral or written, or must be inferred wholly or partly from such conduct, as justifies the promisee in understanding that the promisor intended to make a promise.’

As to subdivision 3, which stated that an issue in the case was ‘Did the defendant, Florence Smith, make an agreement to keep plaintiff in her home as long as defendants were indebted to plaintiff,’ defendants urge that there is no evidence that Mrs. Smith ever agreed to keep plaintiff in her home. This issue was raised in the pleadings; plaintiff testified that Mrs. Smith promised to care for plaintiff; in addition there is the letter heretofore mentioned. An instruction on the subject was therefore warranted. It is difficult to find any merit in defendants' assertion that the instruction implies that if the jury ‘determined that Mrs. Smith had made such an agreement, they should decide the case in plaintiff's favor.’

Subdivision 4 stated that an issue in the case was whether there was ‘an implied understanding between plaintiff and defendants that plaintiff would cancel her debt to them provided they never sent her away from their home.’ Just as the original agreement could have been discharged by the making of a contract by which plaintiff would receive less compensation, so it could have been discharged by the making of an agreement to compensate plaintiff by providing her with a home in her old age. Restatement, Contracts, sec. 408. Defendants argument that the jury was told that an affirmative finding on this issue warranted them in deciding the case in plaintiff's favor lacks merit.

As to subdivisions 5 and 6, relating to whether plaintiff and defendants respectively had performed the conditions on their part to be performed, defendants urge that they sound in damages. Plaintiff correctly responds that there is no mention of damages in these instructions. Such instructions are common in all contract actions. Defendants' argument that ‘the court also told the jury that the agreement mentioned in subdivision numbered 3 and the implied understanding mentioned in subdivision numbered 4 could be considered by the jury as conditions of defendants' agreement on their part to be performed, which, if not performed by them, would entitle plaintiff to have a verdict against defendants * * *’ does not appear to justify a reversal. It is just as true that under the instruction if the jury found against plaintiff as to subdivision 1, they could not return a verdict for her.

Subdivision 7 stated than an issue to be determined was whether plaintiff has ‘been fully compensated in accordance with whatever agreement was entered into.’ The very words defendants challenge, namely, the reference to ‘whatever agreement was entered into,’ establish the pertinency of this instruction.

If any technical error appears in the pleadings, instructions, admission of evidence, the ruling of the trial court, or in the matter of procedure, this court is not of the opinion after an examination of the entire cause, including the evidence, that the judgment resulted in a miscarriage of justice. Const.Calif., art. VI, sec. 4 1/2.

The judgment appealed from is affirmed.

WARD, Justice.

PETERS, P. J., and BRAY, J., concur.