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familiar sections of the code cited by respondent do not, in our opinion, lend any support to his contention. The language herein seems to be clear and explicit and not to involve an absurdity, and, therefore, within the purview of section 1638 of the Civil Code, said language should govern the interpretation of the agreement. Manifestly, the agreement to turn over the building free from any liens does not involve an absurdity or even anything unusual or extraordinary, and since the said conditions concur, the succeeding section of the code (1639) would limit and confine to the writing itself the inquiry as to the intention of the parties. Section 1647, permitting explanation of a contract by reference to the circumstances under which it is executed and the matter to which it relates, may be of aid in many instances where it is apparent something needs explanation, but it cannot be extended to the point of permitting parol testimony to vary the express terms of a written instrument. If we are right in this position, it would not be disputed that the error was prejudicial, for the reason that the parol evidence was offered and received for the purpose of showing that the intention was to relieve the building and the owners of any lien or burden for the possible charge of the architects for the extra work put upon the building, and the proof is that there was no charge whatever for said services.
While the said provision seems to us so certain as to preclude parol testimony to determine its meaning, there is force in the other consideration suggested by appellants that if there be any uncertainty in the language, it should be interpreted most strongly against the party who caused the uncertainty to exist, that is, the contractor, who fits the position both of promisor and the person who prepared the contract. (Civ. Code, sec. 1654.)
We agree with appellants in their contention as to the claim of the Citizens' Construction Company. There is no dispute that the order for their payment was given by the Mutual Construction Company. We think it equally plain that it was accepted by appellants. If so, there was, in effect, a new contract, a novation, the substitution of one creditor for another. By that order the Mutual Construction Company authorized appellants to pay to said Citizens' Company, out of said thirty-five day payment, the sum of $2,124.80, and when the order was accepted the liability and obligation of both became
33 Cal. App.-5
fixed. Neither could thereafter question it, and if the Mutual Construction Company were the plaintiff herein, there could be no doubt that defendants could set up said amount as an offset to the claim made to the said deferred payment. For reasons already stated, we think respondent as assignee is equally bound with the contractor and that said offset may be urged against him.
If we are right in the view that the assignee occupies the same position as would his assignor, then, of course, there is no force in the claim that it was necessary to have a notice to withhold given to the architect or owner as provided in section 1184 of the Code of Civil Procedure. But as to that, appellants point out sufficient facts to show a substantial compliance with the requirement of that provision. The written recognition by the Mutual Construction Company of its obligation to the Citizens' Construction Company as made and directed to the owners on June 9, 1913, should be held equivalent to the notice provided by said statute, and the record shows that at that time the said Citizens' Company had a right to file a lien for the amount of its claim. The statute itself provides that "No such notice shall be invalid by reason of any defect in form, provided, it is sufficient to inform the owner of the substantial matters herein provided for." As stated by appellants: "In the present case the Citizens' Construction Company notified the owner of its claim, for it presented the contractor's recognition of its validity and its amount, vouched for by the contractor and itself. It presented this claim to the owner and asked him to accept and pay it." This was probably even more than the statute requires. It was at least equivalent to the notice contemplated by the law.
It is contended that the court was justified in finding that this order was not accepted by Eva Metcalfe, the owner. There is no doubt, however, that Mr. Brandon, who was the attorney for Mrs. Metcalfe, accepted this order for her on June 9, 1913. He seems to have been representing her in all these matters, and although he had no express authority to sign the acceptance, it would not seem unreasonable to conclude that his authority was broad enough to cover such act. As to this, also, it may be suggested that respondent, standing in the shoes of the Mutual Construction Company, assumes rather a questionable attitude in denying the authority of the attorney who was recognized and treated by said company as
the qualified agent of appellants. If the owner were disputing the authority of the attorney, a very different situation would be presented. However, granting the want of authority, as claimed, it cannot be disputed that the unauthorized act of the attorney might be ratified by the principal, and in this case there can be no doubt that it was so ratified. Mrs. Metcalfe's testimony was: "I was advised of the execution of this paper, defendant's exhibit 'F,' by Mr. Brandon on or about June or July. I accepted it and thought it was all right." This was a sufficient ratification within the teaching of Ralphs v. Hensler, 97 Cal. 296, [32 Pac. 243], and Porter v. Lassen County etc. Co., 127 Cal. 261, [59 Pac. 563].
Besides, as before indicated, this particular claim was covered by the letter of plaintiff of August 2, 1913, which was agreed to by Mrs. Metcalfe and the Mutual Construction Company. This appears clear enough from the testimony in the record, and we see no reason why the contract of these parties should not be enforced.
As to the damages claimed for the failure to complete the building within the time specified, we think the delay has not been entirely excused or justified and that said delay did operate to the detriment of defendants. It is claimed that the extra work consumed about ninety days and that this was covered by a contract between the Metcalfes and the Mutual executed on December 12, 1913, "just eighteen days before the defendants claim that the building should have been actually completed." The amount of the extra work was $14,686 and a third mortgage was given in payment of this. Respondent says: "It would be strange indeed if the defendants in this case were to be permitted to order fourteen thousand dollars worth of extra work within eighteen days prior to the time that the contract was to be completed and expect the same to be finished without allowing additional time." But it appears that when this agreement was made the extra work had already been done, so the argument is not persuasive.
To determine whether the extra work would excuse delay, we must look to the statute and to the agreement of the parties. The particular law in point is section 1511 of the Civil Code, as follows:
"The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is
excused by the following causes, to the extent to which they operate:
"1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse;
"2. When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or,
"3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time."
The case does not seem to fall within any of these subdivisions. It is, however, covered by the contract of the parties. Extra work involves an act of the owners and a modification of the contract. In subdivision 3 thereof it provided that "The time during which the contractor is delayed in said work by the acts of the owners or by the acts of God, which the contractor could not reasonably have foreseen and provided for, or by stormy weather which prevents the work, or by any strikes by employees or labor organizations, shall be added to the aforesaid time for completion; but no such allowance shall be made unless a written demand for additional time with the amount thereof approximately stated and the reasons for such demand given, is presented to the owners by the contractor within twenty-four hours after the cause for such delay has accrued." Then section 9 specifically provides for "alterations, deviations in, additions to, or omissions from" the plans and specifications, and declares that "the same shall in no way affect or make void the contract," except that the additional cost was to be added to the contract price. The extras, therefore, fall within said subdivision 3, and in order to claim an extension of time it was incumbent upon the contractor to make demand, which was not done.
In McGinley v. Hardy, 18 Cal. 116, there was a modification of the contract, but the case is different from this in that there was no agreement that written demand should be made for extension of time, and the court very properly held that the new contract operated to extend the time for completion of the building.
We can see no reason why it was not competent for the parties to provide in their contract for an exclusive method by which the time could be extended as to this particular feature, nor do we see anything in the way of giving effect to such agreement.
The mistakes of the architect, we think, also fall under said subdivision 3. He was the agent of the owner and his mistakes were therefore those of the latter. We think also that
the interference by rain falls within said subdivision.
It is at least doubtful whether the claim that a period of thirty days should be allowed because of the condition of Geary Street is tenable. The court found that the delay was by reason of the act of the municipal authorities. We are not pointed to any evidence in the record that sustains the finding. It does not seem to be included among the facts of which the court may take judicial knowledge. No doubt the municipal authorities were engaged at the time in constructing a railroad on said street, and the proof was easily available, but it should have been produced. Probably through inadvertence it was not offered. As to whether such action of the municipal authorities would excuse the delay, we think the correct test is declared in Carlson v. Sheehan, 157 Cal. 692, [109 Pac. 29], to the effect that it rests upon the consideration whether it rendered performance practically impossible, and in that connection it is said that mere difficulty or unusual or unexpected expense would not excuse the contractor. It is, in our opinion, a close question whether there is sufficient evidence to sustain the conclusion that the condition of said street rendered the performance of the contract "practically impossible," but as the evidence may be different upon another trial, we refrain from passing upon the point.
We think the judgment and order should be reversed, and it is so ordered.
Chipman, P. J., and Hart, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on March 23, 1917, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 19, 1917.