The opinion
SLOSS, J., dissenting in
Wright
v. Beeson.
I dissent, however, from the affirmance of the judgment and order in
Wright
v.
Beeson.
The opinion of the majority proceeds upon the theory that the agreement of June 12th was executed with respect to the twenty shares and the nineteen-hundred-dollar note, and constituted a valid oral modification of the original writing, under section 1698 of the Civil Code. I shall not stop to discuss the appellant’s argument to the effect that, even if the parties had, from the outset, been dealing with the twenty shares alone, the occurrences of June 12th would not have been sufficient to operate as a valid modification of a written agreement. Assuming their sufficiency to that end they could be given effect only by treating the sale of the twenty shares as severable from the remainder of the contract. This cannot be done without making for the parties and imposing upon them a contract which they never intended to make. That the original written agreement was entire is clear from its terms. It provided that no part of the price fixed was to be paid until the entire sixty shares should be delivered and transferred, or be ready for transfer. The alleged modification of June 12th did not purport to make the contract severable. The testimony of Beeson and Brown, as stated in the main opinion, is that Beeson declared to Wright that he wanted to settle up in full and close the transaction for the sixty shares of stock. If the oral agreement
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then made was effective at all, it must have operated upon the rights of the parties to the entire full sixty shares. Neither Beeson nor Wright intended to make an agreement which should apply solely to the twenty shares. Just as the original agreement was entire, so was the attempted modification. If it cannot be given effect
in toto,
it cannot be given effect at all. To enforce it in part is to hold Wright to a payment for twenty shares, when the only contract he has ever made is an entire one for sixty shares. Viewing the modification, then, as an entirety, it was not effective unless fully executed. Execution in part would not suffice. “There must be a complete execution of the obligations of both parties in order to bring the modification within the terms of the statute.”
(Pearsall
v.
Henry,
153 Cal. 314 , [ 95 Pac. 154, 159 ], and cases cited.) The majority opinion shows that the agreement remained executory as to the forty shares. As these shares were bound up with the others so as to make a single agreement for the sale of the sixty shares, the rights of the parties must be determined by their written contract. There is no foundation in either the findings or the evidence for a claim that the conversation of June 12th constituted a novation whereby a new contract was substituted for the existing one. (See
Pearsall
v.
Henry,
153 Cal. 314 , [ 95 Pac. 154, 159 ].) The parties were not, under the testimony of Beeson and Brown, undertaking to abrogate the old agreement and put a new one in its place, but were dealing with a view to carrying out the old agreement, subject to certain stipulated changes.
I think too that the court below erred in admitting evidence of an oral understanding, contemporaneous with the execution of the note, that such note (although upon its face made payable one day after date and bearing interest) was to be payable after the decision in the Feusier case and be without interest.
(San Jose Sav. Bank
v.
Stone,
59 Cal. 183 ;
Cashman
v.
Harrison,
90 Cal. 297 , [ 27 Pac. 283 ];
Leonard
v.
Miner,
120 Cal. 403 , [ 52 Pac. 655 ].)
Angellotti, J., concurred in the foregoing opinions of Justice Sloss.
Rehearing denied.