The document filed in the recorder's office was entitled "Memorandum of a contract." There was nothing except the style of the writing to indicate that it was a copy of anything. The first part reads like a contract, but its language must be deemed that of a memorandum or statement of the substance of a contract. It states that the contractors agreed to build in conformity to drawings "signed by the parties and hereunto annexed." "Hereunto" refers, of course, to the memorandum. It cannot possibly be construed to refer to the original contract of which this document is a memorandum. To hold that it does so refer would be to say that the document is not a memorandum of the contract, but a copy thereof. The drawings and specifications referred to are not signed by the parties. Is this false reference fatal? The case is not directly within Donnelly v. Adams, 115 Cal. 129, or the case of West Coast etc. Co. v. Knapp, 122 Cal. 79. These cases hold, substantially, that the contract is not wholly in writing, as required by the statute, unless the plans and specifications referred to are identified in writing as part of the contract. The memorandum here asserts nothing as to the *Page 67 mode in which this was done in the making of the contract. If a defect, it is one in the memorandum only; and, so considered, I think it a case where the maxim, Falsa demonstratio non nocet, applies. The specifications are otherwise sufficiently identified; they are attached to the memorandum as a part thereof.
The reference in the leading opinion to the "detail drawings," as probably meaning the drawings which were filed, is plainly an oversight. The statement shows that it was admitted at the trial that none of these detail drawings were filed. They must, therefore, refer to something other than the drawings which were filed.
It was proven at the trial that these drawings were all made after the work was commenced, and did not add to or change the contracts, specifications, or drawings on file. They merely showed to the eye of the workman how that which was called for in the contract was to be done. Reference to them in the contract was not necessary, and putting them in worked no change.
The real objection urged to this is that the whole contract was not in writing, and parol testimony was not admissible to show that the reference to detail drawings added nothing to the contract as written. As illustrated in West Coast v. Knapp,supra, a reference might be so material as to demonstrate that a most important part of the contract was not in writing, within the meaning of the mechanic's lien law. When we get the explanation made by the architect, we see plainly that the word "detail" may be properly held to refer to just such an amplification and enlargement as was done. The architect, without the detail drawings, could have stood over the workmen and given directions to the same end. I think the phrase sufficiently ambiguous to allow the oral evidence, and that without the explanation so made the original contract was sufficient for the purposes of the law.
In other matters I agree with the leading opinion.
*Page 68Henshaw, J., concurred.