ments to a charter shall be advertised "in the same manner" that is provided for the advertisement of a proposed charter, and that therefore respondents are not obligated to advertise the amendment in question within 15 days after the filing of the petition for its submission to a vote of the city electorate. The alternative writ of mandate heretofore issued is discharged, and the application for a peremptory writ of mandate is denied.

We concur: WORKS, J.; CRAIG, J

CALIFORNIA DRILLING & MACHINERY
CO. v. CROWDER et al. (Civ. 2474.)
(District Court of Appeal, Third District, Cali-
fornia. July 17, 1922.)

1. Evidence 441 (7) — Parol evidence inadmissible to vary agreement implied by law as to time for performance.

Where a well-drilling agreement specified no time for performance, Civ. Code, § 1657, providing that in such case a reasonable time is allowed, was as much a part of the contract as though written therein, and parol evidence of an agreement fixing the time was inadmissible to change or vary it.

2. Contracts 167-Presumed that statutory rule as to reasonable time for performance was known to parties and considered by them. Where a written agreement specifies no time for performance, it is presumed that the settled legal meaning of such an agreement, under Civ. Code, § 1657, allowing a reasonable time for performance, was known to the parties, and considered by them in the execution of the contract.

defendants, which tended to show that, when the contract between plaintiff and defendants was entered into, a collateral oral agreement was entered into between them, by which the plaintiff became bound to complete its contract not later than May 1, 1920.”

The importance of the ruling is disclosed by the fact that the work was not completed until July, and it is claimed by appellants that thereby they suffered great damage by reason of having been deprived of a water supply for their rice crop. It appears that appellants desired to have this limitation of time embodied in the written contract, but respondent refused to so incorporate it. However, the claim is that there was an oral contract to that effect, and evidence was offered and received in its support, but afterward stricken out by the court. Appellants contend for the application of the rule that:

*

collat

"Parol evidence is admissible as to eral agreement upon which the main writing is silent, and which does not purport to affect the terms of the instrument, and when the evidence offered, or the oral agreement sought to be proved, is not inconsistent with the terms embodied in the instrument."

To the contrary, respondent claims that said oral contract is entirely inconsistent with the written instrument. To show this, it is pointed out that the defendants had several options, which, if exercised, would render the contract impossible of fulfillment by May 1, or any other fixed date. For instance, the written contract gave defendants the privilege of going as far below 100 feet as they might see fit in their search for water. "This one option alone," so says respondent, "makes defendants' alleged oral agreement absolutely irreconcilable with the

Appeal from Superior Court, Butte Coun- written contract." ty; H. D. Gregory, Judge.

Action by the California Drilling & Machinery Company against C. L. Crowder and others. From a judgment for plaintiff, de

fendants appeal. Affirmed

Again, defendants could stop the work at any time to pump out sand, and the testimony showed they actually spent five days of the month in thus getting rid of the sand.

No one could anticipate how much time would be required for this purpose. The deFrank Freeman, of Willows, for appel- fendants also had the right to determine lants. C. D. McComish, of Colusa, for respondent. wells, and at the time of the execution of

BURNETT, J. The action was for the recovery of the sum of $2,900, claimed to be due on a contract in writing executed March 30, 1920, whereby plaintiff agreed to furnish the material and drill certain wells for defendant for the consideration and under the conditions therein specified. The judgment was in favor of plaintiff for the sum of $2,514, from which the appeal is taken.

Appellants declare:

"The question that is presented on this appeal arises from the rulings of the trial court rejecting certain evidence offered by counsel for

whether they would have one well or three

the contract it was not known, of course, how many they would choose. An additional option was the right to have the location of the wells changed, and it seems that, acting under the advice of a certain "water witch," named Cofer, they changed the location of both wells; one of them after it was down 30 feet, requiring the work to be started over again, including the taking down, moving, and setting up of the rigs.

[1] These considerations certainly furnish strong reasons in support of the theory that there was no such agreement to finish the work within a month after the contract was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.)

executed; but we need not decide that such [flict in the authorities exists; but the weight time limitation would be so repugnant to the preponderates and the better reason operates written terms as to bring it within the rule in favor of the view that, where the written forbidding parol evidence "to vary or con- contract is silent as to the time of performtradict the terms of a written instrument," ance, and the law fixes a reasonable time in as we are of the opinion that the case is such cases, the statutory provision becomes a governed by the principle contained in sec- part of the contract as though written theretion 1657 of the Civil Code, as follows: in, and parol evidence is inadmissible to change or vary it. In such instance the written agreement has a settled legal meaning as to time of performance, and it is presumed, of course, that this meaning was known to the parties and considered by them in the execution of the contract.

"If no time is specified for the performance of an act required to be performed, a reasonable time is allowed."

"It is a well-settled principle that that which is implied by law becomes as much a part of the contract as that which is therein written, and if the contract is clear and complete, when aided by that which is imported into it by legal implication, it cannot be contradicted by parol in respect of that which is implied any more than in respect of that which is written."

This court had occasion to give to the subject very careful attention in the case of Standard Box Co. v. Mutual Biscuit Co., 10 We may add that Whittier v. Home SavCal. App. 750, 103 Pac. 938, wherein the Su-ings Bank, 161 Cal. 311, 119 Pac. 92, and preme Court denied a rehearing. Therein it Blaeholder v. Guthrie, 17 Cal. App. 297, 119 was said: Pac. 524, decided since the Standard Box Co. Case, supra, are entirely dissimilar to the case at bar. In the former, parol evidence was held to be admissible to show an agreement to repay to certain assignees, who had taken assignments of a part of the contract to secure advances to the contractor, the sum of $2,600 from the first collections under the written contract for the improvement of certain streets; the written instrument being silent as to such matter and its terms not being affected by said parol agreement. Not only was the written contract incomplete in that respect, but there was no provision of law that supplied the omission, and the Supreme Court properly held that the case fell within the principle announced in Savings Bank of So. Cal. v. Asbury, 117 Cal. 103, 48 Pac. 1083, as follows:

Therein an option was given to purchase, which was silent as to the time for acceptance, and it was held that proof of an oral agreement as to the time was inadmissible. The decisions of the Supreme Court upon the subject are specifically reviewed, and while it was pointed out that some of them contain expressions apparently inconsistent therewith, it was declared that:

"Where the law fixes the time of performance, parol evidence of some other definite time is inadmissible as varying the written instrument."

"The rule that an agreement in writing supersedes all prior or contemporaneous oral negotiations or stipulations concerning its matter has no application to a collateral agreement,

In 17 Cyc. 570, the rule is stated as fol-upon which the instrument is silent and which

lows:

"The legal effect of a written instrument, even though not apparent from the terms of the instrument itself, but left to be implied by law, can no more be contradicted, explained, or controlled by parol or extrinsic evidence than if such effect had been expressed. Thus, where no time of performance is specified in a contract, the legal effect is that it is to be performed within a reasonable time, and parol evidence is not admissible to show an agreement that it shall be performed at a particular time."

In 10 R. C. L. 222, we find the following: "When a writing upon its face imports to be a complete expression of the whole agreement, and contains thereon all that is necessary to constitute a contract, it is presumed that the parties have introduced into it every material item and term, and parol evidence is not admissible to add another term to the agreement, although the writing contains nothing on the particular item to which the parol evidence is directed."

does not purport to affect the terms of the instrument."

In Blaeholder v. Guthrie, supra, the parol evidence was admitted to show the particular crop to which the written contract related, the written instrument being uncertain in that respect. It was said by the Court of Appeal for the Second District:

"If there was any uncertainty or ambiguity in the contract, or the application of the same, it was competent in aid of its interpretation to show the situation of the parties and the surrounding circumstances as they existed when the contract was made"-citing Preble v. Abrahams, 88 Cal. 245, 26 Pac. 99, 22 Am. St. Rep. 301.

In view of the considerations to which we have adverted, we think there was no uncertainty or ambiguity in the contract herein; the parties having impliedly agreed that plaintiff should have a reasonable time in which to complete the work.

[2] Various decisions are cited by both As we view the foregoing decisive of the parties in support of their respective conten- controversy, we need not consider the further tions, and it must be admitted that some con-contention of respondent that appellants

must fail at any rate, because they did not | to file a claim against the estate of the seller show that they suffered any damage by the delay.

(District Court of Appeal, First District, Division 1, California. July 3, 1922. Hearing Denied by Supreme Court Aug. 31, 1922.)

1. Corporations 116-Option to buy stock held converted by credit allowed thereon into accepted offer.

Where a note maker assigned to payee, his brother, in full payment of the note plus the amount of a disputed claim, stock worth the amount of the entire indebtedness, and the payee thereafter gave an option to assignor's wife to purchase the stock for such amount, with interest, and later, on the assignor's objecting to being charged with the disputed claim, the payee agreed to "wipe out" such amount, which he did, not by returning it in cash, but by crediting it with the assignor's consent as a cash payment on the option, the effect of such crediting was to convert the option into an accepted offer. 2. Corporations

116-Option to purchase stock held accepted by payment of less than ful! purchase price.

Where an option to purchase stock provided that, on default in payment of interest on the unpaid portion of the purchase price, the option might be terminated by repaying to the optionee "any sum paid on account of above principal," the option might be exercised and converted into an accepted offer by a payment of less than the whole amount of the price. 3. Executors and administrators 96 - Contract to purchase stock not forfeitable by owner's executor without return of payments made.

for any sum that might be due him under the terms of the option, as neither husband nor wife would have any claim against the estate for the disputed amount until the contract had been lawfully terminated.

4. Corporations 118-Receipt of dividends on stock by seller of stock held to operate as set-off to accruing interest on purchase price.

Where the seller of stock constantly recognized the fact that the acceptance of his offer, embodied in an option given by him to buy the stock and the payment of a part of the purchase price, had converted the option into a mutual contract, and that thereupon the purchaser became the owner of the stock and entitled to its dividends, the receipt of the dividends by the seller constituted by operation interest on the unpaid portion of the purchase of law a set-off to the accruing demands for price.

96-Execu

5. Executors and administrators
tor of seller of stock held bound to notify
buyer to make prompt payment before resort-
ing to forfeiture.

Delays granted by seller of stock in the
payment of interest on the balance of the pur-
chase price made it incumbent on his executors
to give notice to the buyer, before resorting
to forfeiture, that they would require prompt
payment of the interest.
6. Corporations

118 - Delay in making prompt payment of interest on stock purchase held waived.

Where one of the executors of the seller of stock, when asked by husband of the buyer to figure up the amount necessary to pay the full purchase price, pleaded his desire to go on a vacation, and the matter was accordingly delayed until his return, this operated as waiver of delay in making prompt payment of interest on the unpaid balance of the price.

7. Appeal and error 1009(2)-Findings reasonably sustained by competent evidence in proceeding to compel delivery of assets by exccutors are conclusive on appeal.

ceeding to require executors to transfer and The Supreme Court having held that a prodeliver bank stock pursuant to a contract by decedent for the sale thereof is practically a proceeding in equity terminating in a final judg ment, the findings of the trial court are conclusive on appeal, if reasonably sustained by competent evidence.

8. Specific performance

121 (8)—Findings as to truth of allegation of equity in petition to require delivery of bank stock under contract with decedent held sustained.

Where an option to purchase stock provided that, on default in payment of interest on the unpaid portion of the purchase price, the option might be terminated by repaying to the purchaser "any sum paid on account of above principal," and the seller had agreed, as respects a disputed claim against purchaser's husband, which had been paid by the husband's transfer of the stock to the seller, to "wipe out" such amount, and had done so, not by re- Findings of the trial court, in a proceeding turning it in cash, but by crediting it, with the to require executors to deliver bank stock purhusband's assent, as a cash payment on the suant to a contract for the sale thereof by dewife's option, the seller's executor, in attempt- cedent, that the allegation of equity in the ing to declare a forfeiture, failed of his pur- petition was true, held sustained by sufficient pose, where he made no offer to return the evidence, as against the contention that the amount of the disputed claim in cash, nor was value of the stock was so far in excess of the the effect of the provision as to repayment agreed price as to render specific enforcement avoided by the executor's inviting the husband of the contract inequitable.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.)

Elenore A. Cheda." The evidence shows, without conflict, that V. J. B. Cheda had no knowledge of the execution of said assignment and that it was never delivered to him. The dividends accruing on the stock in January, 1920, although actually paid into the bank to the credit of S. H. Cheda, were drawn out of the account by V. J. B. Cheda and apparently applied to his own use. No offer was made at the time of service of the notice of forfeiture, or at any other time, to repay to Elenore A. Cheda, or to V. J. B. Cheda, the said sum of $6,650, paid on the option on January 10, 1917.

On the day following the service of said notice, Elenore A. Cheda paid to V. J. B. Cheda, as one of said executors, the sum of $1,400 by way of interest and in about one week thereafter she paid to him the entire balance of $19,000. These payments were accepted by V. J. B. Cheda, but not by George A. Cheda, and a few days thereafter the full amount of both payments was deposited in one of the banks to the credit of the two executors, and notice thereof given to George A. Cheda.

ed said V. J. B. Cheda and another brother, "For value received, I hereby sell, assign, George A. Cheda, as joint executors thereof. | and transfer all my right in and to above opHe left one minor son as his sole heir. For tion to V. J. B. Cheda. a period of about 18 months prior to his death, he was practically incapable of attending to business. During this period V. J. B. Cheda, assisted more or less by George A. Cheda, handled his affairs and managed the two banks. V. J. B. Cheda had control of the bank account of the deceased during his illness, and made deposits therein and drew checks thereon as occasion required. Sometimes he signed simply the name S. H. Cheda, and at other times he followed the signature with his own initials. About the time of the payment of the $6,650 on the option contract, S. H. Cheda orally agreed that the dividends accruing upon the bank stock should regularly be credited to Elenore A. Cheda on the interest account on the option. The dividends on the stock more than paid the interest on the option, and the excess was paid, from time to time, to Elenore A. Cheda. These dividends, up to and including the month of January, 1918, were by S. H. Cheda, in his own handwriting, credited in liquidation of the interest accruing on the option. These credits paid the interest to the month of January, 1918. Shortly after this he suffered a collapse, and he did not [1] The first and most important question thereafter personally attend to any business. in the case is the effect of the payment of In the month of May, 1919, there had ac- $6,650 made on the option on the day folcrued as unpaid dividends on said 190 shares lowing its execution. It should be remarked of stock the sum of $855, which sum was, that, although V. J. B. Cheda strenuously by said George A. Cheda, credited on the insisted that he was not liable for and should interest account on said option. This credit not be bound by the transactions which rewas made by him in his own handwriting sulted in the losses on the barley and other and as agent for S. H. Cheda. On or about deals, he is made to say on cross-examination the 2d day of July, 1920, and very shortly as a witness that he "owed" said sum to S. before the death of S. II. Cheda, said George H. Cheda; but an examination of his entire A. Cheda received the sum of $855 as divi- testimony shows clearly that he disputed dends upon said stock, and he then and there and controverted the claim, and shows that paid the same into the bank account of S. II. his brother S. H. Cheda acquiesced therein Cheda, although no entry or indorsement and returned the money by way of credit on was made upon said option contract to show the option. The effect of this payment was that the same, or any part thereof, was ap- to close the option and to convert it into an plied toward the payment of interest. If accepted offer. From that time the contract Elenore A. Cheda was entitled to have it so was fully binding upon S. H. Cheda. In the credited, then she was not delinquent as late case of Flickinger v. Heck, decided by much as one year in the payment of interest the Supreme Court on September 17, 1921, and no delinquency on account of nonpay- and reported in 200 Pac. 1045, the court ment of interest ever accrued.

On September 3, 1920, George A. Cheda, acting as one of said executors, served upon V. J. B. Cheda a notice of forfeiture on the alleged ground that a payment of interest was more than one year overdue. No notice was ever served upon Elenore A. Cheda. The service was made upon her husband on the theory that a certain indorsement upon one of the triplicate copies of the option operated as a transfer thereof to him. This indorsement was made upon that copy retained by S. H. Cheda, and it was found among his papers after his death. It was in the following words:

says:

"An option contract may be regarded as embodying an offer. When the optionee, or person to whom the option is made, signifies his desire to accept in accordance with the terms of the option, the optioner, or person making the offer, becomes obligated to perform. This acceptance of the offer contained in the option contract is called 'election,' and it gives rise to a subsequent contract between the parties to buy and sell or perform whatever other acts have been specified in the option contract."

[2] The payment of part of the purchase price and its voluntary acceptance by S. H. Cheda constituted an election by Elenore A.