Plaintiff brought this action against Raymond Carroll and Alice C. Carroll to quiet title to thirty shares of the capital stock of the Lytle Creek Water and Improvement Company and to compel that corporation to transfer the stock on its books and issue a new certificate to him. Plaintiff had judgment and Mr. and Mrs. Carroll have appealed. We will hereafter refer to Mr. and Mrs. Carroll as the defendants and to the corporate defendant as the water company.

In 1922 plaintiff and Walter Kohl sold property to Raymond Carroll. Two notes in the principal sum of $20,000 each, one payable to O. H. Kohl and the other to Walter Kohl, were executed by defendants. They were secured by a mortgage on fifty acres of the real property and a pledge of fifty shares of the capital stock of the water company which furnished irrigating water to the land. The Walter Kohl note was paid and ten acres of the land together with twenty shares of the water stock were released from the lien of the mortgage and the pledge, leaving thirty shares of the water stock in the possession of plaintiff as a pledge as additional security for the unpaid note. The certificates were issued in the name of Raymond Carroll and were not indorsed by him.

As the note to plaintiff was not paid he brought suit to foreclose the mortgage and the pledge. After negotiations between the parties, they effected, as they believed, a settlement of their differences. Plaintiff paid defendants $3,500. He also released his mortgage and dismissed his action to foreclose the mortgage and his pledge. Defendants gave plaintiff a deed to the remaining forty acres of the mortgaged property and a bill of sale to ten shares of stock of the water company, 1200 smudge pots, 9,000 gallons of fuel oil, two fuel oil storage tanks and six smudge pot lighters. The ten shares of water stock were part of the twenty shares released to defendants and were no part of the thirty shares in controversy here. Those thirty shares remained in the posses si'on of plaintiff as he believed they bore the endorsement of Carroll.

Several months after the settlement had been concluded, plaintiff took the certificates to the office of the water company to have new certificates issued to him. It was then discovered that they did not bear Carroll’s indorsement. The water company refused to make the transfer, Carroll refused to indorse the certificates and this action followed.

During the trial plaintiff was permitted to prove a parol agreement between the parties to the effect that the pledged water stock was to go to and remain the property of plaintiff as a part of this settlement. The strong preponderance of the evidence supports the findings of the trial judge that such parol agreement was made. Defendants maintain that their objections to the admission of this evidence should have been sustained as it tended to vary the terms of a written contract.

The practical construction placed upon the contract by the parties also supports the view that plaintiff became the owner of the thirty shares of stock. He retained possession of the certificates and defendants did not demand their return. By reason of these certificates, plaintiff obtained and used water to irrigate the land deeded to him by defendants. He paid the assessments on the stock. Under some circumstances the practical construction placed on a contract" by the parties to it furnishes strong evidence of what they intended by its terms. (Skousen v. Hers, 135 Cal. App. 116 [ 26 Pac. (2d) 498 ].)

It is clear that if the evidence of the parol agreement was properly admitted the judgment must be affirmed. If error was committed in these rulings it must be reversed as there is no other competent evidence to support the findings and judgment.

It is a well-settled general rule that the terms of a written contract may not be varied by parol evidence. It is equally well settled that where a writing expresses a consideration which is not the true consideration, the actual consideration may be proved by parol evidence. It is also well settled that where the writing does not purport to include all of the terms of a parol contract, the writing is no bar to proof of the terms of the contract which were not covered by the writing.

A similar question was before the court in the case of Weil v. California Bank, 219 Cal. 538 [ 27 Pac. (2d) 904 ], where it was said:

Of similar import is Linney v. Challacombe, 118 Cal. App. 95 [ 4 Pac. (2d) 789 ], where it was said:

The writings relied upon by defendants, as eonstituing the written contract, are: (1) a letter from defendants’ counsel to a title company; (2) a letter from plaintiff’s counsel to the same company; (3) the deed of defendants to plaintiff; (4) the bill of sale of defendants to plaintiff. It appears from the letter of plaintiff’s attorney that there was an original order opening an escrow Avith the title company. No such order appears in the record.

The letter from defendants’ attorney to the title company bears date of December 29, 1935, and is as follows:

The letter from plaintiff’s counsel to the title company is dated January 20, 1936, and is as follows:

We find nothing in these writings which purports to set out all of the terms of a contract between the parties. On the other hand the writings would seem to indicate they were executed to carry out the terms of a contract not fully disclosed by the writings. Without some explanation, the terms of the contract could hardly be ascertained from the writings. Where writings leave the terms of a written contract uncertain or ambiguous parol evidence is admissible to remove the uncertainty or ambiguity. (10 Cal. Jur. 938 et seq., and cases cited.)

Having reached the conclusion that the challenged evidence was properly admitted and that this evidence supports the findings to the effect that the thirty shares of water stock were sold and delivered to plaintiff and paid for by him the judgment must be affirmed. Personal property may be sold by a parol contract where there is payment and delivery. In this instance payment was made and there was sufficient delivery as the vendee was in possession of the stock at the time of the sale to him. (Wilson v. Hotchkiss, 171 Cal. 617 [ 154 Pac. 1 , Ann. Cas. 1917B, 570, L. R. A. 1916F, 389].)

The judgment is affirmed.

Barnard, P. J., and Jennings, J., concurred.