Griffin & Skelly Co. v. Magnolia & Healdsburg Fruit Can nery Co., 107 Cal. 378 [40 Pac. 495], and Sourbis v. Rhodes, 50 Cal. App. 98 [194 Pac. 521], are cited as sustaining this proposition. Those decisions upon examination will show that the court determined only that the right of individual defendants, resident in a county other than that in which the action was commenced, to have the place of trial changed to the county of their residence (Code Civ. Proc., sec. 395) could not be affected by the fact that a corporation had been joined with them as party defendant. The individual defendants in this case made no demand upon the court that it should change the place of trial to the residence of either of them. They made no showing as to where they resided beyond that they did not reside within the county of Kern. (Strassburger v. Santa Fe Land Improvement Co., 54 Cal. App. 7 [200 Pac. 1065].) The defendant corporation could not complain of the order because of its effect upon the right of the individual defendants, and the showing made by the latter was insufficient, for the reason stated, to warrant the court in granting the motion for the change. The order is affirmed. Conrey, P. J., and Shaw, J., concurred. [Civ. No. 3912. Second Appellate District, Division One.-July 5, 1922.] C. G. YARBROUGH, Respondent, v. BARNETT ROSENBURG et al., Appellants. [1] CONTRACT-MEMORANDUM-PAROL EVIDENCE.-The rule that when a contract has been reduced to writing, parol evidence is not admissible for the purpose of cutting down or adding to its terms. has no application to a memorandum to pay a sum of money for "certain information" signed only by the promisor, where such memorandum shows on its face that it does not purport to represent fully the terms of the agreement. APPEAL from a judgment of the Superior Court of Los Angeles County. Edwin F. Hahn, Judge. Affirmed. The facts are stated in the opinion of the court. Hibbard & Kleindienst for Appellants. Turnbull, Heffron & Kelley for Respondent. JAMES, J.-Plaintiff was awarded judgment in the sum of $800 upon an alleged contract made with the defendants. Defendants have appealed from that judgment and here present the judgment-roll, insisting that the complaint of plaintiff fails to state sufficient facts to constitute a cause of action and that their demurrer interposed thereto should have been sustained. In paragraph III of his complaint plaintiff alleged that on the 20th of December, 1920, defendants executed a "memorandum" in writing wherein and whereby the terms of said agreement were set forth, said instrument being in words and figures as follows, to wit: "Mr. C. G. Yarbrough, "2019 Bay St., "Los Angeles, Cal. "Dec. 20, 1920. "Dear Sir: Rosenburg Co., 336 E. 3rd St. agree for certain information regarding a 340 K. W. D. C. generator to pay you the sum of $800.00 if the set is bought for $5500.00 and to pay you the sum of $1000.00 if the set is purchased for less than $5000.00. "Yours truly, "ROSENBURG & Co. It was further alleged that in consideration of said agreement plaintiff furnished to the defendants the information referred to in said memorandum, "to wit, information where and when a certain 340 K. W. D. C. generator might be purchased. That the said information so furnished by plaintiff to the defendants was the same information and all of the information referred to in said memorandum aforesaid and was all of the information required to be furnished and asked for by the defendants." It was further alleged that defendants did purchase the generator for a sum less than $5,000 and that they had refused plaintiff's demand to pay for the service rendered. [1] Appellants 58 Cal. App.-31 insist that the written memorandum must be taken as representing the contract made between the parties and that it is unenforceable because the consideration to be rendered by the plaintiff is not therein stated. The words "certain information," it is contended, are too indefinite to describe what the service to be rendered by the plaintiff was. The case of Talmadge v. Arrowhead R. Co., 101 Cal. 367 [35 Pac. 1000], and other decisions are cited to this point. The written memorandum (signed only by defendants) does not purport to represent fully the terms of the agreement except that it does express the amounts to be paid by defendants in the different contingencies. The more complete terms of the contract are shown by the further allegations of the complaint to which reference has been made. The case presented is like that considered in Kreuzberger v. Wingfield, 96 Cal. 251 [31 Pac. 109], where the court referred to a writing as a mere memorandum made by one of the parties, and held that it was competent for the opposite party to make oral proof of negotiations and conversations, and in that connection it was said: "The rule is, of course, a familiar and salutary one, that when a contract has been reduced to writing, parol evidence is not admissible for the purpose of cutting down or adding to its terms. But in order for this rule to have any application the writing must be one which, by legal construction, shows upon its face that it was intended to express the whole contract between the parties. (Naumberg v. Young, 44 N. J. L. 338 [43 Am. Rep. 380]; Harrison v. McCormick, 89 Cal. 327 [23 Am. St. Rep. 469, 26 Pac. 830].)" The demurrer was properly overruled. The judgment is affirmed. Conrey, P. J., and Shaw, J., concurred. [Civ. No. 4235. First Appellate District, Division One.-July 5, 1922.] DOMENICO VERGANO, Respondent, v. PAUL DENIS, Appellant. [1] PERSONAL SERVICES-CONTRACT-PAYMENTS EVIDENCE.-In this ac tion to recover an alleged balance due for services, the findings as to the terms of the contract under which the services were rendered and as to the nature of payments made to the plaintiff are supported by the evidence. APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Bernard J. Flood, Judge. Modified. The facts are stated in the opinion of the court. Clay A. Pedrazzini for Appellant. Harry I. Stafford for Respondent. PREWETT, J., pro tem.-This is an action to recover from the appellant an alleged balance due to the respondent for labor. The record discloses that the appellant was the owner of a restaurant, which he contracted to sell to the respondent for fifteen hundred dollars, of which sum five hundred dollars was then and there paid in cash. It was further stipulated that either party might withdraw from the contract within two months-the appellant by returning the five hundred dollars initial payment and the respondent by simply withdrawing and forfeiting his payment. The parties did not enter into partnership, but they agreed to do so, if the sale was finally consummated, and in that event they were to have been partners from the beginning, so far, at least, as concerns the profits and losses. The respondent entered the restaurant and for the period of two months and a little over he devoted his time and services to the business. It was agreed that each party should draw down during the two months two hundred dollars a month as "expenses." The appellant does not dispute that each was to draw down two hundred dollars per month, but he testifies that the two hundred received by the respondent was to be by way of compensation to him for his services. The court resolved this conflict in favor of the respondent, and under a familiar rule this court is bound by the finding. The respondent further testified that it was agreed that, in the event that the appellant withdrew from the contract, he, the respondent, was to be compensated for his services by receiving one-half the profits of the business during the period. The appellant denied the existence of such an arrangement and the court found against him thereon. The matter does not rest entirely upon the unsupported testimony of the respondent. The appellant returned the five hundred dollars payment to the respondent and when he did so he added to it the sum of one hundred dollars. This sum of one hundred dollars was not due at all unless it was paid as a recognition of the claim of the respondent to one-half the profits as his compensation. Furthermore, the appellant a few days after returning the five hundred dollars destroyed his books of account showing the amount of profits. The respondent had seen them previous to their destruction and had learned that the profits were about fifteen hundred dollars. There was abundant evidence to sustain the finding of the trial court. But it seems that the court erroneously failed to credit the appellant with the one hundred dollars overpayment. No reason is apparent why he should not have credit for this. The respondent is made to say, by means of an affirmative answer to a question on cross-examination, that he accepted the six hundred dollars (being the five hundred. dollar return of advance payment and the extra one hundred dollars) "in full payment," but a transcript of his testimony on this point shows clearly that he did not intend to say that it was accepted in full payment for both the return payment of five hundred dollars and his claimed compensation. The following is a transcription from the record: "Q. Mr. Vergano, did you not at that time accept the six hundred dollar check which was given to you that day from Mr. Denis in full payment of what was coming to you? A. Yes. "Q. You did? A. Yes, I received it; yes. |