I dissent. The rule stated in section 1856 of the Code of Civil Procedure, to the effect that when an agreement is reduced to writing such writing is to be deemed to contain all the terms of the contract, and that in such a case no evidence, parol or written, can be received of those terms, is subject to the necessary and well-known qualification that it does not apply to a written contract which, upon its face, shows but a partial statement of the agreement, and which discloses that other terms are necessary to make it complete or effective. In all such cases the omission can be supplied by evidence aliunde. The written contract of sale which is involved in this case expressed nothing whatever upon the subject of the quality of the beans sold. It was *Page 326 silent on that point. The question whether under it the plaintiffs were required to deliver merchantable beans, beans not merchantable, or beans of some superior quality, was necessarily left to be determined by reference to something outside of and additional to the words contained in the writing. So far as the matter of the quality of the beans was concerned the contract was incomplete on its face, and comes, clearly within the qualification above stated. It is true that in such cases, in order to make such contract effective, where there was in fact no agreement by the parties upon the subject, the law steps in and assumes that the intention of the parties in respect of the omitted term is the intention which is usually found to exist in like transactions, — namely, that merchantable beans were to be delivered. This constructive agreement is made by the law for the reason that, unless the term is supplied, there is no complete or effective contract. It is not made because, in fact, the parties did, either by express words or tacit understanding to be inferred from circumstances, actually agree to that effect. There is a rule of evidence to the effect that in the absence of proof it will be presumed that the usual course of dealing was pursued. This is the foundation upon which the implication of law rests. This presumption is in itself evidence. No good reason can be shown why, in such cases, the rights of the parties should be determined by presumptive evidence alone, which is often contrary to the fact, and why they should be denied the privilege of showing by outside evidence precisely the agreement which they did make, and which they did not include in the contract which was reduced to writing. This rule, of course, has nothing to do with the other rule of evidence to the effect that parol evidence cannot be received to contradict a writing. The evidence that the sale was made by sample does not tend in the least degree to contradict anything expressed in the written contract.
The case of Sivers v. Sivers, 97 Cal. 518, is a good illustration of the proposition above stated, and is in principle an exact precedent for the case at bar. In that case the parties had executed a written agreement to pay to the plaintiff the sum of three hundred dollars, but the contract did not specify the time of payment. In such cases the law implies that the money is to be paid on demand (Civ. Code, *Page 327 sec. 1657), as in case of sales the law implies that property inaccessible to the purchaser when sold shall be sound and merchantable when delivered. (Civ. Code, sec. 1771) The cases in this respect are precisely parallel. In that case it was held that the qualification of the rule stated in section 1856 of the Code of Civil Procedure, above quoted, was applicable; that with respect to the time of payment the contract was silent; and that parol testimony was admissible to supply the omitted term of the contract by proving an agreement in parol that the payment was to be made whenever the promisors should sell a certain tract of real estate, and that prior to the beginning of the action said real estate had been sold. This case is a later case thanHarrison v. McCormick, 89 Cal. 327, [23 Am. St. Rep. 469], as is also the case of Guidery v. Green, 95 Cal. 635, to the same effect. They should be held to prevail over the doctrine laid down in Harrison v. McCormick. The distinction I have pointed out was not discussed in Harrison v. McCormick. The entire subject is discussed at great length in the recent work of Wigmore on Evidence, in volume 4, beginning with section 2400. That author there takes the ground that the principles of evidence are clearly in favor of the admission of other evidence in cases where, as here, there was obviously an omission in the writing of some term of the contract, such as an implied warranty.
Under the proof that the sale was made by sample, the law would imply a warranty that the quality of the property sold was equal to the sample exhibited. (Civ. Code, sec. 1766) This warranty would constitute a condition of the contract of sale, and in such cases the delivery of the goods to the carrier for transportation to the buyer does not have the effect of passing title to the buyer. The title will not pass until there has been an acceptance. (Mechem on Sales, secs. 522, 746, 1212; Pope v.Allis, 115 U.S. 372, [6 Sup. Ct. 69]; Taylor v. Saxe, 134 N.Y. 67, [31 N.E. 258]; Barton v. Kane, 17 Wis. 44, [84 Am. Dec. 728];Conrad v. Dater, 2 Biss. 343, [Fed. Cas. No. 3127]; Aultman etc.Co. v. Clifford, 55 Minn. 159, [43 Am. St. Rep. 478, 46 N.W. 593]; Fogel v. Brubaker, 122 Pa. St. 10, [15 A. 692]; Filley v.Pope, 115 U.S. 219, [6 Sup. Ct. 19]; Norrington v. Wright,115 U.S. 203, [6 Sup. Ct. 12]; Grimoldby v. Wells, 10 (L.R.) C.P. Cas. *Page 328 391.) The consequence of these rules is, that in this particular case the title to the beans did not pass to the Allison Company. Its rejection of the beans on inspection put an end to the contract and the title remained in the plaintiff. There was no conflict in the evidence upon the fact that the sale was actually made by sample. It was substantially conceded, the only objection being that it was not competent evidence. The court was authorized to instruct the jury that the sale was made by sample, and that as a consequence thereof the title did not pass to the Allison Company, nor to their vendees, McDonogh and Runyon. The instruction given was therefore correct, and the verdict is sustained by the evidence. I think the judgment should be affirmed.
Van Dyke, J., and McFarland, J, concurred with Shaw, J.
Rehearing denied.