I concur in the result, but I do not agree with what is said in the main opinion as to the writing of August 22, 1913, being a receipt merely, with the result that evidence was permissible to show that the Wolff note was taken by the defendant as security instead of in payment as specified in the writing. The writing was more than a receipt. It was intended by the parties as the written expression of their understanding. Its terms must, therefore, be taken as final as to what their understanding was. The question of whether the Wolff note was taken as security or in payment is one as to what was understood between the parties, and inasmuch *Page 425 as the written expression of this understanding says it was taken in payment, that ends the matter. This conclusion, however, does not change the result. The Wolff note was taken in payment either conditionally or absolutely. The presumption is it was taken in conditional payment ( Griffith v. Grogan, 12 Cal. 317 ), and the subsequent conduct of the parties leaves no doubt as to this being the fact. The final and crucial question in the case is as to whether the note was paid as a result of the subsequent transaction whereby Lemm endeavored to buy into the partnership with the plaintiff and Wolff. It appears that Lemm was to pay not to the plaintiff, but into the capital of the firm, one thousand dollars, of which five hundred dollars was to be paid by the payment of the Wolff note to the firm. On this understanding Lemm redelivered the note to the plaintiff. But the note was never paid and the partnership came to nothing. There was, therefore, a complete failure of the consideration for which Lemm gave up the note, and he has not, in fact, received anything of value on account of the five hundred dollars which constituted the part of the purchase price represented by the note. This being the situation, the plaintiff must pay this five hundred dollars before he is entitled to a deed under his contract of purchase. Shaw, J., concurred.
Olney, Wilbur
Honore v. Lemm
M. HONORE, Appellant, v. HANS LEMM Et Al., Respondents
<p>APPEAL from a judgment of the Superior Court of San Mateo County. Geo. H. Buck, Judge.</p> <p>The facts are stated in the opinion of the court.</p>
<docketnumber id="b460-8">
    [S. F. No. 8398.
   </docketnumber><court id="ANc">
    In Bank.
   </court><decisiondate id="AI4">
    October 9, 1919.]
   </decisiondate><br><parties id="b460-9">
    M. HONORE, Appellant, v. HANS LEMM et al., Respondents.
   </parties><br><headnotes id="b460-10">
<bracketnum>
     [1]
    </bracketnum>
    Vendor and Vendee—Specific Performance—Note as Part Pat-" ment—Receipt—Pabol Evidence.—In an action by a vendee for specific performance of a contract of sale, where the only question is whether the vendee has paid a certain amount upon the price in addition to the amount conceded by the vendor to have been paid, ’ the testimony of the vendor that the note given him for such amount is not received in payment, but merely as security, is admissible, notwithstanding the giving of a receipt for the amount represented by the note, which receipt is now claimed to constitute the contract of sale, where the terms of the contract are admitted by the pleadings, and from the admitted terms of the contract it does not appear that the note was given or received in payment, or that the money has been paid, and the receipt is not
    <span citation-index="1" class="star-pagination" label="421"> 
     *421
     </span>
    offered or received in evidence as proof of the terms of the contract, but merely as evidence of payment.
   </headnotes><br><headnotes id="b461-5">
<bracketnum>
     [2]
    </bracketnum>
    Id.—Receipt—Insufficient Contract of Sale.—A receipt is insufficient to establish a contract for the purchase and sale of a lot where the description was not contained therein, but was subsequently inserted by the vendee in the absence of the vendor.
   </headnotes><br><summary id="b461-6">
    APPEAL from a judgment of the Superior Court of San Mateo County. Geo. H. Buck, Judge.
   </summary><disposition id="AL3">
    Affirmed.
   </disposition><br><summary id="b461-7">
    The facts are stated in the opinion of the court.
   </summary><br><attorneys id="b461-8">
    Stafford &amp; Stafford, H. I. Stafford, W. F. Stafford and Wm. M. Stafford for Appellant.
   </attorneys><br><attorneys id="b461-9">
    Drown, Leicester &amp; Drown for Respondents.
   </attorneys>
<p>[1] Vendor and Vendee—Specific Performance—Note as Part Pat-" ment—Receipt—Pabol Evidence.—In an action by a vendee for specific performance of a contract of sale, where the only question is whether the vendee has paid a certain amount upon the price in addition to the amount conceded by the vendor to have been paid, ’ the testimony of the vendor that the note given him for such amount is not received in payment, but merely as security, is admissible, notwithstanding the giving of a receipt for the amount represented by the note, which receipt is now claimed to constitute the contract of sale, where the terms of the contract are admitted by the pleadings, and from the admitted terms of the contract it does not appear that the note was given or received in payment, or that the money has been paid, and the receipt is not offered or received in evidence as proof of the terms of the contract, but merely as evidence of payment.</p> <p>[2] Id.—Receipt—Insufficient Contract of Sale.—A receipt is insufficient to establish a contract for the purchase and sale of a lot where the description was not contained therein, but was subsequently inserted by the vendee in the absence of the vendor.</p>
APPEAL from a judgment of the Superior Court of San Mateo County. Geo. H. Buck, Judge. Affirmed.

The facts are stated in the opinion of the court.
California Supreme Court
California Supreme Court