Opinion
Civ. No. 14928.
Filed November 20, 1952.
Appeal from a judgment of the Superior Court of Marin County. Jordan L. Martinelli, Judge. Affirmed.
Action to quiet title. Judgment for plaintiff's affirmed.
Everett S. Layman and Kenneth S. Carey for Appellants.
Myers Carter for Respondents.
MOTION to recall remittitur. Motion denied.
Gardiner Riede and Delger Trowbridge for Appellants.
Riggins, Rossi, King Kongsgaard and King Ghidella for Respondents.
Defendant Alysse Wyatt Allen appeals from a judgment quieting title to certain real property in plaintiffs and declaring void certain restrictions and right of reentry which defendant claimed she was entitled to enforce.
The basic facts are undisputed. The property involved was deeded on January 6, 1908, by Mrs. Alice Latham and her husband to William L. Deysher. In the deed the property — we shall further use the terms Deysher deed and Deysher property — was described in substance as lot (1) on a plat of land of Mrs. Alice Latham in San Anselmo, County of Marin, State of California, which subdivision map had been recorded on January 4, 1908, after having been duly acted on. No restrictions applicable to the lots of the subdivision were recorded. The Deysher deed stated as express conditions of the conveyance in substance that the lot should not be used for sale, et cetera if liquor, that the public and private roads fronting the lot should be kept clear of vehicles, farm implements and other obstructions and that in case of violation of these conditions title would revert to the grantors and they would have the right to reenter. At the time of the Deysher deed Mrs. Latham owned as her separate property a tract of land in San Anselmo of which the recorded subdivision formed part and she and her husband owned as community property a tract of land abutting on Mrs. Latham's separate tract, on which community tract, further called the home tract, the Lathams lived. Mrs. Latham never sold any lot of the plotted subdivision except the Deysher lot. For many years Deysher operated a garage on said lot and Mrs. Latham continued to live on the home property. On April 24, 1926, Mrs. Latham deeded the home tract to her granddaughter Alysse Wyatt Allen, appellant herein, and her other tract including the platted subdivision with the exception of the Deysher lot to her daughter Mrs. Alysse Latham Allen without making any restrictions as contained in the Deysher deed in either of these two deeds. Both the latter deeds were recorded in September, 1939, after Mrs. Latham had died in that month. Mrs. Alysse Latham Allen and Alysse Wyatt Allen were Mrs. Latham's only heirs and devisees. Moreover, Alysse Wyatt Allen was executrix of her will. On September 30, 1944, the two grantees each conveyed the land obtained to Lang Bros., a partnership again without making any restrictions as imposed on the Deysher property. The successor of the grantee partnership, the Lang Construction Company, at the time of the trial in this case was preparing the lands acquired for commercial and multiple dwelling purposes not in accordance with the recorded plat of Mrs. Latham. Some of the roads projected on the plat had been abandoned. In 1947 the plaintiffs acquired the Deysher property, with knowledge of the restrictions contained in the Deysher deed, which had been recorded. In September, 1948, they instituted this action to quiet title and avoid the restrictions contained in the said deed. Only Alysse Wyatt Allen, both in her individual capacity and as executrix of the will of Mrs. Latham, the original grantor answered claiming to have succeeded to the rights reserved by the grantor in the Deysher deed. Alysse Latham Allen and the Lang partners filed disclaimers.
After having taken evidence, among other things with respect to the increasing commercial and industrial development of the neighborhood, the court found in substance the facts to be as stated above and further in part that the restrictions had been incorporated in the Deysher deed for the protection of the other lots of the subdivision as first class residential property and for the protection of the land retained by Mrs. Latham for her own use; that when Mrs. Latham disposed of all said land without placing any restriction on it, she waived said restrictions; that appellant and Mrs. Alysse Latham Allen before the institution of this action had disposed of all lands involved without making any restrictions and that they did not live in, or own any property or have any interest in San Anselmo or its environs, and that because of change in the purpose for which surrounding lands were used all property involved was best used for business purposes, wherefore the court concluded in accord with plaintiffs' prayers.
Appellant urges mainly that the right of reentry reserved in the Deysher deed was an interest in real property which cannot be avoided in equity in the same manner as this can be done with respect to equitable servitudes; that where the deed did not provide that the restrictions were made for the benefit of the remainder of the tract as dominant tenement, the interest reserved was personal to the grantor and her successors in interest and was not lost by her disposing of the remainder of the tract or by waiver; that the court could not base a finding that the restrictions were made for the benefit of lands retained by the grantor on evidence outside the deed and that the change found in the purpose for which surrounding lands were being used had no relation to the subject matter of the restrictions reserved.
It may be conceded that where the Deysher deed stated the restrictions involved to be express conditions and gave a right of reentry in case of violation without any indication that possible forfeiture was not intended by the parties, and where said restrictions were not unlawful or unreasonable said conditions were, when made, valid and enforceable as written. ( Rosecrans v. Pacific Elec. Ry. Co., 21 Cal.2d 602, 605 [ 134 P.2d 245]; Wedum-Aldahl Co. v. Miller, 18 Cal.App.2d 745, 750 [ 64 P.2d 762].) However it does not follow from the character of said restrictions as conditions subsequent with right of reentry that said restrictions must be secure from attack in equity when changed circumstances or prior conduct of the party seeking enforcement has caused said enforcement to be purposeless or inequitable. In California cases such circumstances have long since led to avoidance of restrictions notwithstanding the fact that they were in the form of conditions subsequent. In Brown v. Wrightman (1907). 5 Cal.App. 391 [ 90 P. 467] an express condition subsequent; against sale of intoxicating liquor or maintaining of a house of prostitution on the premises was held waived and grantor estopped from enforcing it where he sold portions of the tract of land retained by him without incorporating such conditions, and grantees of such portions maintained houses of prostitution and places for the sale of intoxicating liquor on their premises with the knowledge and acquiescence of the plaintiff. In Bernstein v. Minney (1929), 96 Cal.App. 597 [ 274 P. 614] the owners of a tract being subdivided imposed building restrictions as conditions subsequent with reverter in case of breach on three lots they sold. The conditions among other things restricted the use to residential purposes. The grantors did not uniformly impose the restrictions when selling other lots and permitted use of lots for business purposes so that they character of residential property of the land around the restricted three lots was lost. A judgment quieting title to the three lots against the conditions subsequent was upheld on appeal on the basis of waiver (p. 601). The court pointed out that if the restrictions had been breached the grantors would not have been entitled to damages and added (p. 600): "Does the mere fact that a forfeiture of the whole fee is stipulated in the deeds alter the power of this court, under these circumstances, to render equitable justice? We think not. It is for just such conditions as these that equity is designed as a remedial agency." Also in Wedum-Aldahl Co. v. Miller, supra (1937), 18 Cal.App.2d 745 title of the grantee to lots in a subdivision was quieted free from a right of reverter to the grantor in case of breach of restrictions — in that case, as in ours, restrictions against sale of intoxicating liquor. The grantor had given up his original purpose to hold the whole development free of intoxicating beverage, had sold many lots in the same tract without liquor restrictions and had acquiesced in violation of clauses inserted in other deeds. It was held that under these circumstances enforcement of the restrictive clause against the plaintiff would be inequitable, that it must be considered waived and the grantor estopped from asserting its validity. The Young v. Cramer (1940) 38 Cal.App.2d 64 [ 100 P.2d 523], a successor of the grantor was denied enforcement of a right of reentry reserved for grantor in case of breach of restrictions imposed on each lot as part of a general plan for improvement of the tract for the benefit of each parcel of the tract as dominant tenement, where the grantor no longer owned any land within the tract. In Alexander v. Title Ins. Trust Co. (1941), 48 Cal.App.2d 488 [ 119 P.2d 992], a restriction limiting the use of a lot of a subdivided tract to single residences and a right of reverter in case of breach were removed when it was shown that the right of reverter as to the lots of that tract was held by defendant trust company who had relinquished the reversionary interest in some of the lots in consideration of substantial amounts of money but which did not own any land in the tract, and that because of changed conditions in the surroundings the property had become unfit for residential purposes and valuable for commercial use. It was held that the restrictions were obviously made for the benefit of the other property in the tract and that enforcement of the restrictive provisions against plaintiff was inequitable and could not be claimed by defendants who had no interest in the upholding and had shown this lack of interest by relinquishing the restrictions as to other lots. This court in Maderis v. Pattavina (1941), 46 Cal.App.2d 615 [ 116 P.2d 495] held that subdividers who had conveyed certain lots on express conditions with reverter in case of breach, representing orally that all lots were being sold on these same conditions, waived their right to enforce them when they conveyed other lots without inserting the same.
In none of these cases did the circumstance that the right of reentry or reverter might be considered a conditional interest in real property, as urged by appellant, prevent the destruction of that interest when the enforcement of the restriction it was intended to protect had become useless or inequitable. Correctly so. The technical classification of a legal concept alone may not prevent an equitable and useful solution. The effect of upholding restrictions with right of reentry for breach after the practical purpose for which they were reserved has ceased is to hamper the usefulness of the property and to give the grantor or his successors in interest the power to exact compensation for their release, without any benefit to society. Alexander v. Title Ins. Trust Co., supra, is a good example of such abuse and its termination by the court.
Neither do we agree with the contention that because the Deysher deed did not contain any express statement that the restrictions were for the benefit of the other lands of the grantor and enforceable by any future lot owner it was without importance whether defendant had any interest in their enforcement, or whether she still owned any of said lands. It is true that in California under such circumstances grantees of other lots can in no manner take advantage of the restrictions and the right of enforcement (by reentry) is limited to the grantor and his successors in interest. ( Werner v. Graham, 181 Cal. 174, 179, et seq. [ 183 P. 945]; McBride v. Freeman, 191 Cal. 152, 154 [ 215 P. 678]; Childs v. Newfield, 136 Cal.App. 217, 222 [ 28 P.2d 924].) However it does not follow that the grantor retains said right of enforcement even though he has disposed of all land he had retained without making any such restriction. The contrary is shown by cases relating to building and occupation restrictions on subdivisions in which cases the right of enforcement of grantor is considered lost when he has lost all interest in the property to be benefited. In Firth v. Marovich, 160 Cal. 257, 260 [ 116 P. 729, Ann.Cas. 1912D 1190] it is said (obiter): "It is not open to question that building restrictions of the kind contained in the deed . . . are valid and enforceable at the suit of the grantor so long as he continues to own any part of the tract for the benefit of which the restrictions were exacted." (Emphasis ours.) In Alexander v. Title Ins. Trust Co., supra, 48 Cal.App.2d at page 492 the court states that such building restrictions obviously have as their basis the benefit to be conferred on other property in the same tract and cites Young v. Cramer, supra ( 38 Cal.App.2d 64) for the proposition that such restriction may not be enforced by anyone other than the owner of part of the land for the benefit of which the restriction was imposed. See, also, Blodgett v. Trumbull, 83 Cal.App. 566, 571-572 [ 257 P. 199] Moe v. Gier, 116 Cal.App. 403, 408 [ 2 P.2d 852]; Ann. 43 A.L.R. 1049, 1052 and cases from other jurisdictions cited in the Young case at page 68 of which the two Texas cases, Maddox v. Adair, (Tex.Civ.App.) 66 S.W. 811, 813 and Stevens v. Galveston H. S. A. Ry. Co., (Tex.Com. App.) 212 S.W. 639, 645, are especially well in point.
In this case it is not so obvious as in the building restriction cases that the restriction as to sale of liquor was imposed for the benefit of the lands retained by grantor because such restriction could also have been based on her opposition to the use of alcoholic beverage in general. However the trial court found that the restriction was made for the protection of the lands retained and that finding is adequately supported by the evidence that at the time the restriction was made grantor lived nearby and had planned to subdivide part of her property, that when grantor and later her grantees, among whom was appellant, parted with all of the remaining property they did not impose any such restriction — an attitude which tends to negative objection to alcoholic beverage in general as the purpose of the restriction — and that at the same time as the restriction on the sale of liquor a restriction was imposed as to obstruction of roads, a restriction evidently intended only for the benefit of the neighbors. Because of this finding of fact we need not decide whether the restriction should not also have been considered abandoned or lost if it had originally been reserved because of personal opposition of grantor to the use of liquor in general.
We also reject appellant's contention that the deed is the only memorial which can prove the purpose for which the restrictions contained in it were imposed. Appellant cites many cases among which Werner v. Graham, supra, 181 Cal. at page 185 and Wing v. Forest Lawn Cemetery Assn., 15 Cal.2d 472, 479 [ 101 P.2d 1099, 130 A.L.R. 120], for the above proposition. However all these cases, with the exception of one to be mentioned later, relate to the creation of mutual rights in real property in the character of equitable easements or covenants running with the land, enforceable by the different grantees of lots inter se and require that such creation be stated in the written instruments exchanged to determine the rights in the realty, a requirement necessarily based on the statute of frauds or the parol evidence rule or both. The statute of frauds is evidently not applicable to the purpose for which restrictions made in writing were created, in connection with the problem whether such restrictions were still enforceable after such purpose may have ceased to exist. Neither did the admission of extrinsic evidence as to the purpose of the restrictions in this case violate the parol evidence rule as it was not admitted to vary any terms of the deed but to find the intention of the parties as to a point not directly involved in and left in doubt by said deed. (See Boyer v. Murphy, 202 Cal. 23, 28-29 [ 259 P. 38]; 9 Cal.Jur. 387.) Compare Maderis v. Pattavina, supra (46 Cal.App.2d at page 617), and Cornbleth v. Allen, 80 Cal.App. 459, 463 [ 251 P. 87], for the extent of the above rule from Werner v. Graham.
The only case cited by appellant which supports her contentions to some extent is Currie v. Title Ins. Trust Co., 60 Cal.App. 192 [ 212 P. 409]. There the court reversed a judgment quieting title to a lot as against certain building and occupation restrictions in the form of conditions subsequent with reverter to grantor in case of breach, although the grantor had disposed of all other lots in the same tract, on the ground that the restrictions inured to the grantor and not to the owner of certain lots of land citing as sole authority Werner v. Graham, supra. The decision has never been followed and we doubt whether it finds support in the Werner case. At any rate it can be distinguished on its facts from the case before us because in the Currie case the only ground adduced for avoidance of the restrictions was that the grantor had disposed of all the property benefited by the restrictions whereas in this case moreover no restrictions were imposed on any of the neighboring land of which the grantor disposed and the restrictions had therefore lost all legitimate interest not only for grantor and her successors but for the present owners of the neighboring lands as well. Under the latter circumstances the avoidance of the restrictions is certainly justified.
It is without importance whether said disposal of all lands retained without imposing any restrictions amounts to waiver in the technical sense of the word. In most of the cases cited herein as examples of the destruction of conditions subsequent waiver was found although there was no intentional relinquishment of the right of reentry. In such cases the word "waiver" — sometimes combined with "estoppel" — does not mean more than that the party claiming a right to enforce has acted in such a manner or has caused such changes that enforcement would no longer be equitable. In that sense there was waiver here and the finding to that effect was therefore not erroneous. Appellant cannot complain that said waiver was not sufficiently pleaded where evidence of the acts showing said waiver was received without objection and the court accordingly made a finding on it. ( McClure v. Donovan, 33 Cal.2d 717, 731 [ 205 P.2d 17]; Beckjord v. Traeger, 3 Cal.App.2d 385, 387 [ 39 P.2d 523, 41 P.2d 172].)
It may well be that the increasing use of the neighboring lands for commercial and industrial purposes is not relevant to the continual existence of the restriction here involved, because said restriction does not relate to use for residential purposes, and that the evidence of the intention to restrict the other lots of the subdivision to first class residential use is insufficient as it is based solely on the size of said lots on the plat. However the decision is sufficiently supported by the finding that the restrictions were intended for the benefit of the lands retained by grantor, that all said lands were disposed of and no restriction imposed on any of them and that therefore the restrictions were waived. Further findings may then be regarded as surplusage and it is immaterial whether they are supported by the evidence. ( Sands v. Eagle Oil Refining Co., 83 Cal.App.2d 312, 321 [ 188 P.2d 782] and cases there cited.)
Judgment affirmed.
Goodell, J., and Dooling, J., concurred.
Appellants' petition for a hearing by the Supreme Court was denied January 15, 1953.
This is a motion to recall remittitur. In an action wherein movants as plaintiffs sought to have declared the respective rights and obligations of the parties to a written contract, a judgment was rendered adverse to their contentions and from that judgment they appealed. The matter of the appeal was referred to this court and our decision appears in 107 Cal.App.2d 436 [ 237 P.2d 338]. Therein will be found a statement of the case which we will not repeat. We affirmed the decision of the trial court. Movants asked for a rehearing, which was denied. They then applied to the Supreme Court for a hearing. This also was denied. Now the appellants, as moving parties, ask this court to recall its remittitur.
In the recent case of Southwestern Inv. Corp. v. City of Los Angeles, 38 Cal.2d 623 [ 241 P.2d 985], the principles governing the recall of a remittitur were stated as follows:
"That a remittitur may be recalled on the reviewing court's own motion, on motion or petition after notice supported by affidavits, or on stipulation setting forth the facts which will justify the granting of the order is now determined by rule. (Rule 25(d), Rules on Appeal; 36 Cal.2d at p. 22.) The question as to when the facts constitute grounds for the granting of the motion is resolved by the case law. Other than for the correction of clerical errors, the recall may be ordered on the ground of fraud, mistake or inadvertence. The recall may not be granted to correct judicial error. . . . In the McGee case [ In re McGee, 37 Cal.2d 6 ( 229 P.2d 780)] it was pointed out that a decision is inadvertent if it is the result of oversight, neglect or accident, as distinguished from judicial error. In Chin Ott Wong v. Title Ins. Trust Co., 91 Cal.App.2d 1 [ 204 P.2d 387], an order recalling the remittitur was vacated when on analysis it appeared that the purpose of the recall was merely to amend the judgment on appeal."
In Rowland v. Kreyenhagen, 24 Cal. 52, 59, it is stated:
". . . [A]s a general rule, this court cannot exercise any jurisdiction over a cause in which the remittitur has been issued by its order and filed in the Court below. The office of the remittitur is to return the proceedings which have been brought up by the appeal to the Court below, and when the remittitur has been duly filed, the proceedings from that time are pending in that Court, and not in this; and, in regard to them, it is not competent for this Court to make any further order.
"But this general rule rests upon the supposition that all the proceedings have been regular, and that no fraud or imposition has been practiced upon the Court or the opposite party; for if it appears that such has been the case, the appellate Court will assert its jurisdiction and recall the case. Against an order or judgment improvidently granted, upon a false suggestion, or under a mistake as to the facts of the case, this Court will afford relief after the adjournment of the term; and will, if necessary, recall a remittitur and stay proceedings in the Court below. This is not done, however, upon the principle of resumption of jurisdiction, but upon the ground that the jurisdiction of the Court cannot be divested by an irregular or improvident order. In contemplation of law, an order obtained upon a false suggestion is not the order of the Court, and may be treated as a nullity."
The motion here is made "on the ground that fraud and imposition were practiced upon this Court, and upon the plaintiffs, cross-defendants and appellants in the above entitled matter, and misrepresentations were made to this Court by respondents' attorneys, and that inadvertence, oversight and accident occurred in the decision of this case by this Court, all of which caused this Court to reach an erroneous result, and that the granting of said motion and the reconsideration of said decision of this Court will be in the interests of justice."
Movants contend that this court was wrongfully imposed upon through the making by respondents' counsel, in their briefs on appeal, of misstatements of fact concerning the contents of the record. They specifically set forth six of these alleged misstatements of fact. They say, quoting from the brief of respondents, that the following misstatements were therein made: "1. `Plaintiffs' attorney offered evidence at the trial in aid of the interpretation of the contract.' 2. `The judgment of the trial court interpreting the contract is harmonious and consistent and that it is supported at all points by the evidence in the case.' 3. `The trial court interpreted the contract in the light of conflicting evidence. There was not only evidence that supports the court's interpretation, but the overwhelming preponderance of the evidence supports it.' 4. `These were all questions of fact to be determined by the trial court in interpreting the contract and its decision on conflicting evidence would be binding, but the overwhelming preponderance of the evidence sustains our statements.' 5. `We have pointed out the fact that several of the findings are supported by the evidence in discussing the facts.' 6. `The arguments advanced by appellants presented at most only a conflict in evidence.'"
The alleged misstatements are not misstatements of fact. They constitute argument of counsel. Whether such argument would withstand appellate scrutiny, the record considered, is not of moment here. [1] A misstatement of material facts which would justify recall of the remittitur necessarily means a misstatement of facts presented in evidence — not a mere faulty conclusion as to the legal effect of those facts. Statements such as are here alleged to have constituted material misstatements of fact commonly appear in briefs filed and we think are not taken by appellate courts as anything more than argument. They are neither intended, nor fitted, to deceive the reviewing court.
It is next argued that this court, relying on the alleged misstatements of fact which we have set forth above, "made no attempt to analyze the evidence to see whether the interpretations of the contract by the trial Court were in any way justified." We do not doubt that counsel for movants here sincerely feel they are justified in the foregoing charge. They have demonstrated in their briefs on appeal, for rehearing here, and for hearing by the Supreme Court, that they are utterly in disagreement with all of the courts that have acted in the matter. We can only say that at least we made an attempt to analyze the evidence itself, relying not at all upon the argumentative statements quoted from respondents' briefs. We read the entire record having to do with the construction of the subject contract, and many portions of it we reread. [2] Also we considered the contract which was being construed and of course that instrument is the first and highest evidence as to the intent of the parties in executing it. If any defects exist in our appellate consideration of the case, a point which we do not concede, the defects are the result of judicial error and not of any alleged misrepresentations of fact made by counsel.
Having concluded that respondents' counsel made no misstatements of fact and having asserted that this court in its appellate consideration did not rely upon the argumentative generalizations quoted from their brief, we might, and perhaps should, indulge in no further discussion concerning these assignments of fraudulent conduct on the part of respondents' counsel. But movants state that things said in our written opinion demonstrate that this court acted under misapprehension as to material facts and circumstances of the cause, and we will discuss these assignments. In this connection movants criticize the following statement in the opinion we filed [p. 438]: "They [plaintiffs below] sought to introduce, and were by the trial court permitted to introduce, evidence of the facts and circumstances attending the execution of the contract as an aid to its interpretation. We think the contract was sufficiently ambiguous to justify the introduction of such evidence. The result is that this court upon appeal is bound by the interpretation of the trial court where it is reasonable and is supported by the evidence introduced." It is argued that the above statement is not correct because "the contract was not ambiguous, which respondent itself admits on page 71 of its opening brief." Movants state that the real truth is that their attorney at the trial "only offered evidence on one point, namely, to determine the meaning of the word `Pumicite,' which the Court interpreted in favor of the plaintiff." This action was begun, as we have said, to have the respective rights and obligations of the parties to a written contract declared. Movants, as plaintiffs below, pleaded that there existed an actual, substantial and bona fide dispute as to the meaning, interpretation and effect of the contract. Their complaint set forth some 23 separate claims made by them as to their rights and obligations under the subject instrument, and it was asserted these claims were disputed and denied by respondents. As used in the contract the meaning of the word "pumicite" was resolved by the trial court in a finding reading as follows:
"That contained in said real property is a deposit of an agglomerate of fragmental volcanic debris and pyroclastic material, consisting in large part of fragments of pumice, subordinate portion of fragments of non-pumiceous lavas varying in size from fine sand up to fragments several feet in diameter, and a mineral cementing the aforesaid fragments together containing silica, ferric oxide, alumina, lime, magnesia and moisture; that the pumice in said material has been referred to by all persons involved herein as pumicite and is herein referred to as pumicite; . . ."
In short, the trial court found that pumicite meant pumice. But the 23 specifications of dispute as to the meaning of the subject instrument contained many matters not resolved by the trial court's finding as to the meaning of the word "pumicite"; and that these further differences were matters of concern and the subject of evidence introduced at the trial is made manifest by the record. In their opening statement at the trial movants' counsel said: "We seek an interpretation of a contract dated May 6, 1938. We maintain by the first count of our complaint that there are a number of differences; and, as a matter of fact, the answer to the complaint acknowledges that there are all of those differences." A few pages further on in the transcript the same counsel said in effect that the claim they were entitled to receive unadulterated pumice was the basis of the controversy and that several other controversies were involved. When the chief officer of respondent corporation was being examined under section 2055 of the Code of Civil Procedure we find the following:
"Q. [By plaintiffs' counsel] I assume that during that first period there was considerable discussion of what the contract was to be? A. That is right. Q. During that first period was there any discussion of what pumicite is or was? Mr. King [counsel for defendant]: I am going to object to this question on the ground that it is incompetent, irrelevant and immaterial, and that no proper foundation has been laid. There are allegations of the complaint wherein the plaintiffs allege certain construction of the contract, which, of course, we deny, and we admit in our answer that we dispute their claims; but we don't admit the contract is ambiguous and we still claim that the contract speaks for itself and that there was no ambiguity. Mr. Gardiner [counsel for the plaintiffs]: If the Court please, my understanding of a declaratory relief action invites the possibility of the Court investigating the whole meaning of a contract, and apparently under some circumstances that can result in calling black white. The actual intention of the parties in drafting the contract is under investigation in a declaratory relief action. I understood the Court had already passed on this matter by overruling a demurrer. This is the very question we are here to investigate. The Court: What do you propose to show here? Mr. Gardiner: I presume the objection made goes generally to the question of what the discussions were leading up to the actual signing of this contract. I have a very considerable number of questions. I wish to show the entire conversation that took place for the purpose of interpreting that contract. I wish to find out from Mr. Streblow what the parties intended by the use of the word pumicite. I wish to find out what the parties intended by the reference to a material for plaster aggregate. I wish to find out and show what they intended by the expression `other admixture,' and what they referred to by the expression `blend,' and how they discussed those matters and what their agreement actually means on all those subjects. The Court: Pumicite is first, and then what is next? Mr. Gardiner: Pumicite is the first one. The next is the general question of what was intended by the expression `material for plaster aggregate,' and whether they had a particular kind of material in mind or whether they had mill run in mind, and then a discussion of the word `blend,' whether that had to be a mix or a blend. Well, I might say all the questions are raised in our complaint that we say the parties are disputing right down the line, the whole series of controversies between the parties. I wish to find out whether those subjects set forth in the complaint as the present controversies were discussed in Gordon Johnson's office. The Court: You intend to set up the circumstances under which the contract was executed in order that you may have it interpreted generally and particularly with reference to the specifications which you have mentioned? Mr. Gardiner: That is right, Sir. The Court: All the elements which you have specified? Mr. Gardiner: That is correct. The Court: I think it is permissible, but I will hear you [speaking to respondents]. . . . The Court: He can't do that all at one time. He is trying to show by proof of surrounding circumstances that ambiguity does in fact exist. Mr. Gardiner: I might say that the pleadings disclose ambiguity. The Court: They allege ambiguity; they don't disclose it. Mr. King: We want the Court to interpret the meaning of the contract as it is written, not by something they said. The Court: I appreciate that is your side of the case. Mr. King: We don't allege an ambiguity. The Court: No, but he does on his side, and he wants to prove that under the general scope of the pleadings."
In view of the foregoing we can only conclude that it was not the movants' theory in the trial court to offer evidence on only one point, that is to determine the meaning of the word "pumicite." We think these quotations from the transcript support the statement in our opinion that appellants "sought to introduce, and were by the trial court permitted to introduce, evidence of the facts and circumstances attending the execution of the contract as an aid to its interpretation." We readily admit, as insisted upon by movants' counsel, that both sides frequently stated that in many respects concerning the disputes between them, indeed in most, the contract was not ambiguous, but on the contrary clear, certain and not to be misunderstood. Nevertheless, each side claimed that the contract clearly declared in the way they interpreted it, and just as clearly excluded the meaning contended for by the opposing side. Such a situation is a familiar one. Such a situation also lends support to a determination that a contract capable of stating so clearly such opposite things is sufficiently ambiguous to justify the calling in of all permissible aids for its proper interpretation.
It is next stated by the movants that this court in its opinion made the following misstatement of fact, indicating that it was acting under misapprehension: "During this period Davis, who alone placed orders for material did not complain that the material from the King deposit processed, as the court found was intended, did not meet the contract requirements." This quoted sentence from the opinion is made the subject of bitter attack. Concerning it, and after quoting it, the appellants in their petition for a rehearing said: "We cannot understand how this misconception of fact occurred. We are certain that Respondents will make no such claim. The dissatisfaction and complaints of Davis for a full ten years were so bitter that none of the parties involved will likely ever minimize them." And further concerning the quoted sentence it was said in the petition for hearing by the Supreme Court: "This statement is almost amusingly false to those who went through that ten years of bitter controversy." The quoted sentence is taken from context. The preceding sentence read: "Also upon this matter of the purity of the pumice the court had the benefit of the acts of the parties through the years before any dispute arose." (See Woodbine v. Van Horn, 29 Cal.2d 95, 104 [ 173 P.2d 17].) We think enough, and perhaps too much, has been said about this matter which, after all, is minor. It certainly would furnish no justification for holding that the decision of this court was inadvertently or improvidently or irregularly made.
It is argued by movants that the holding of this court as expressed in its opinion that the contract in question was not assignable as far as the rights therein given to Mr. and Mrs. Davis were concerned was inadvertently made. We think nothing more need be said concerning this contention than to refer to our recorded opinion concerning the matter of assignability. It is apparent that we have here nothing in the nature of inadvertence. And as we have said, it is not proper in ruling upon the motion before us to discuss what cannot be anything but a claim of judicial error.
It is finally contended that this court, as a result of inadvertence and accident "failed to hold that the contract in litigation is survivable." Says counsel for movants: "An entirely different question . . . never expressly passed on by this or any other Court is whether the contract is survivable as distinguished from assignable, i.e., whether this contract survives to the administrators or executors of the Davises." The trial of this case was lengthy; there were competent counsel on both sides; there was an experienced and able trial judge presiding; there was opportunity to move for additional findings in respect of the matter of survivability if the parties deemed the matter important, and no such motion was made; the matter of survivability was at best only inferentially posed by the pleadings; and if the trial court did rule on survivability, the ruling can only justly be described as implied rather than express. No express holding upon the subject will anywhere be found in the entire record. Certainly this court did not say anything about the subject in its opinion and we think we may be excused in view of what we have just said and of the following additional considerations: Plaintiffs in the action were Alice M. Davis individually, Alice M. Davis as administratrix of the estate of J.E. Davis, deceased, and Hal H. Schwartz. By their complaint they specified the points of disagreement between themselves and the defendants under 23 specifications and they did not specify that the survivability of the contract was one of them. It might be argued that inferentially the pleadings posed the question of survivability in that the administratrix of the estate of J.E. Davis was a party, and in that as to the specifications of dispute it was alleged that "plaintiffs and their assignees" were entitled to certain rights, which is to say, though not expressly, that Alice M. Davis as executrix was one of those entitled to such rights. However, beyond that the pleadings do not go. The answer of defendants did raise the issue of assignability but set forth no claim dependent upon lack of survivability. The findings say nothing expressly about survivability but inferentially it might be argued that a ruling was made that the contract was not survivable. That occurs in this way: The court found "That upon the death of said J.E. Davis his interest in said contract . . . terminated and the power of plaintiff Hal H. Schwartz as attorney in fact of said decedent terminated." The finding referred to occurred within the following context: There was a precedent finding that on October 31, 1946, J.E. Davis and Alice Maud Davis executed to plaintiff Hal H. Schwartz a power of attorney authorizing him as their agent to make purchases under the contract; that J.E. Davis had died and Alice M. Davis had been appointed and qualified as his administratrix. Then followed the finding quoted. It is apparent that the trial court was concerned in that portion of the findings with the continued existence in Hal H. Schwartz of a power of attorney authorizing him to make purchases as the agent of the Davises and it is difficult, in view of the context, to read the finding concerning terminations of the interest of J.E. Davis upon his death as relating to anything other than the power of attorney he had given during his lifetime. We may state further that the memorandum opinion of the trial court was made part of the record and therefrom it appears that while the trial court declared, first, that the contract had not been assigned to Schwartz, and, second, that it was not assignable, yet nothing was said concerning survivability. Passing on to the opening brief we find that survivability was referred to in one of the headings, which read as follows: "Contrary to the express terms of the contract and the surrounding circumstances the court found that the contract was not transferable by the Davises or by death succession." (Emphasis added.) Thereafter the argument was expanded and the expanded argument had nothing to say regarding survivability, but was devoted to assignability. The argument began thus: "Those [referring to the quoted findings] are nothing more than legal conclusions at the best, and merely indicate that the trial Court thought that the contract on its face was nonassignable as a matter of law" The reply brief discussed assignability, respondent to the contentions of the appellants upon that subject, but said nothing as to survivability. The closing brief omitted any discussion of survivability, though devoting some space to assignability. We granted appellants' request for permission to file supplemental authorities and there was filed a "Summary of Principal Issues" wherein one of five issues was thus stated: "Is the contract assignable: Will it survive the death of J.E. Davis?" The petition for a rehearing devoted one heading to assignability, but said nothing of survivability. At oral argument the following was said, inter alia: "The trial court decided because there was some economic hardship involved . . . they should be allowed to escape. Although it said the contract was assignable, nevertheless the trial court said it was not assignable and when J.E. Davis died it died with him and his administratrix took nothing whatever. . . . The trial court said, `I am going to relieve you by finding it died with the people who first wrote it.'" Nothing further appears in our record of the oral argument with reference to survivability.
The foregoing makes it clear that, first, movants are correct in their statement that no court has expressly passed upon the question of survivability as distinct from assignability. It shows further that the matter of survivability, if the parties considered it to be an issue and material, was at most but sketchily presented to this court as an issue; that after this court's opinion had been handed down appellants did not in their petition for rehearing call this court's attention to the fact that we had not therein treated the question of survivability and that movants did not ask that a rehearing be granted in order that that issue might be expressly passed upon. Under these circumstances we think that the fact that this matter of survivability was not mentioned in the opinion of this court affords no reason whatever for the recall of the remittitur. To permit movants to have the remittitur recalled for this reason would be to permit litigants to present the merits of an appeal piecemeal. That cannot be done. There was ample opportunity to present the issue of survivability squarely. This was not done — not even on petition for rehearing here, nor on petition for hearing in the Supreme Court. Pertinent here is what was said in Chin Ott Wong v. Title Ins. Trust Co., 91 Cal.App.2d 1, 3 [ 204 P.2d 387]:
"We are impressed that the facts in the instant case bring it within the rule that if a party is dissatisfied with the judgment as rendered in an appellate court, his remedy is to petition for a rehearing or modification of the judgment within the time allowed by law and before the remittitur has issued."
The motion to recall remittitur is denied.
Peek, J., and Schottky, J. pro tem., concurred.
Appellants' petition for a hearing by the Supreme Court was denied January 15, 1953.