*1 in consideration by a one claim an action other. With payment by ALLEN, Appellant Jr., Norman B. (Defendant below), him in against damages pending for counterclaim, Hill had filed
which he damages his claim below), simply released Virginia (Defendant R. Allen acquittal return an exacting in without him. against the claim asserted from ALLEN, Appellee Norman B. set- compromise and (Plaintiff below). ratification raise by Brazells cannot tlement No. 4541. forego some- promise on their Supreme Wyoming. Court did renounce the carrier thing which 4, June attempt- short, there was no
for them. In compromise and settlement of ed to which by the carrier claim
Brazells’ by ratification.”
they could be bound from Bra- quote to the reference
With says:
sell, appellant words, if even Wood-
“. .In other ques- had ratified the
stock reply, it could have no through
tion itself claim since the release
effect on his that claim.” attempt to affect
made no this observation—assum- agree with
We com-
ing of the insurance proof there is no this misleading party. third
pany’s showing.
instance, there nowas such hold, therefore, that under the facts
We Woodstock, by plain-
presented appeal, ratify
tiff-appellant, did not the release in his the defendant-
executed behalf Evanoff,
appellee, plain- behest liability
tiff’s carrier —either silence
by asserting the release a defense as would
counterclaim—in such fashion against bar claim
serve to Woodstock’s Further, gener-
Evanoff. such matters ratified,
ally, release, even where deprive serve to of his defendant,
right against of action ex-
cept right and unless the forfeiture agree-
of action is demonstrated through
ment or terms the release plain-
itself execution thereof
tiff. to the lower
Reversed and remanded proceedings not inconsistent opinion.
H39 *3 reconveyed the land to the plaintiff-father, the defendant-son and the defendant wife, joint Virginia, then the latter’s rights survivorship. tenants with On the same date all three mortgaged the two tracts one to Farmers Home Administration to secure $10,500.00 discharge loan interim financing obligation. Place; lived on the River Haptonstall the defendants lived Burke, Maycock, Daly, Daly M. & *4 on the paid John Place. The father the taxes
Gillette, in appeared signed the brief and Place; River and wife the son and his appellant. argument oral on behalf of Place, paid Haptonstall the taxes on the Sundance, Hughes, signed separately purposes for on K. carried tax Cecil appeared county and be- The made argument brief on tax records. defendants appellee. payments mortgage. half of the on the defendant mar- The and his wife were GUTHRIE, Before J., and McCLIN- C. ried in divorced in remarried TOCK, ROSE, RAPER, and THOMAS again and divorced in In the 1967 JJ- proceeding, pleadings both in their divorce alleged real acres property to be “240 RAPER, Justice. addi- [Haptonstall land and an Place] Appellee-plaintiff appel- is the father held tional acres of land Place] [River plaintiff lant-defendant. The was the rec- financing only, purposes for all which ord owner of a tract of land known as the subject mortgage real to estate Place, upon River which he lived and amount of Ten Thousand Hundred Five farmed. The defendant was raised there Testimony of the defendant-son Dollars.” and for a marriage, time after his he and divorce action was as follows: his wife lived on the homestead with the was And fact that “Q Place] [River plaintiff and his wife defendant’s before you in transferred to return mother died. The defendant his then him, promise was your to look after wife, Virginia, a defendant in the district it not ? appeal, party court but not a this to security No, it “A was It was for place wanted a not. a! their own found on this mortgage reasons buy, tract of land Hapton- to known as my only That is the reason stall F.H.A. However, Place. large not a was went on that enough name deed.”1 economic unit qualify to for a Farmers Home loan for its Administration exchange The contends that the plaintiff purchase. arranged accomplished deeds was
By interim financing arranged by only purpose of suitable plain- creating for the tiff, Haptonstall buy purchased security could Place was the defendants in the defendants’ places Haptonstall Both Place at that time. When names. were then conveyed person, to a mort- third Farmers Home Administration who parts testimony Allen, father, My Other Q of the son’s Norman B. Sr.” divorce action are an undivided one- to the same effect: the owner of Q “You’re may property you “What be do ranch? A It own? A own 231 half interest * * * security interest, [Haptonstall acres but it was for Place].” an undivided referring buy money Place, A River “I think I could borrow reasons so my with, belongs there’s 440 rea- acres. and that That dad.” other ranch my ownership required Q “What’s name it.” of that land? A F.H.A. son.
H41 Administration, satisfied, Place the Farmers Home the River gage was plaintiff- reconveyed by conveyance plaintiff. be No returned passed consideration Haptonstall The Place would re- father from father. property pursuant son This is the sole and wife. done main oft-repeated principle as- agreement was that we must defendants. None of this developed by testimony. sumе that in favor the success- writing but was evidence true, party ful are leave out of appellant claims the deeds absolute consideration entirely party trial judge their faces evidence unsuccessful as on shown. intended, therewith, repre- conflict “parties give to the evi- found that every lands dence successful favor- agreed sented [River * * may reasonably able inference which to revert was [sic] Place] and fairly Grazing drawn from it. Peters property he the sole again Association P. premises [Haptonstall Legerski, Wyo. and the lands and * * * 2d sole and references there footnoted. would be the Place] Any further facts that may be set out of the defendants.” are within the shown appeal questions presented on reasonably the record or infer- respect of this case circumstances red. are: *5 lip spectrum, give parol In broad courts pre- 1. Does evidence rule complete in service to the familiar that a written a deed rule clude reformation of instrument, face, cannot absolute on its its terms ? but, testimony by parol varied as observed recovery 2. Is the oral to Uranium, in North American Inc. John frauds, as void violative of the statute 325, ston, 1957, 332, 348, Wyo. P.2d 77 316 W.S.1957, 16-1, C.1965, pertinent part, § 330, 329, the citing on 3 Corbin Contracts § as follows: many rule has it is the de vagaries every agreement following “In the cases spair of law teachers and writers. law agreement, or shall be void unless such American, recognized it is North some note or memorandum thereof be integrated com transaction into a by the to writing, party and subscribed document, in that plete only partially and charged therewith: posture, parol admissible evidence is not by its Every agreement writing respect part with to the to reduced “First — performed within one terms not to be prove parol but to evidence is admissible thereof; year making from the writing. lat reduced to “Fifth — the sale of Every real agreement or contract [*] estate, [*] * * ter does not contradict Bachmann v. the. 1958, instrument. Parkinson 78 Wyo. Hurtt, 478, 1919, 329 vary P.2d Wyo. the terms 823, 332, 340, Roberts, 824; 709, facts here happenings 184 P. 711. The state of have narrated the We ad parol is that received proceed on that the evidence the basis vary does not the terms orally transfer the missible in that it agree did that the to deed solely the deed the straw man and the River Place to defendants explains purpose purpose property giving for the them defendants reconvey proves agreement adequate for their an oral to secure a loan benefit previous to their execution.2 upon mortgage and that entered satisfaction into jeal only courts also note that need as We we not and do not utilize it lations. ously While transactions, point upon case, consid without an scrutinize which to decide fiduciary persons having interesting appears eration, in 71 between annotation A.L.R.2d other, relationship 382, 384, expressing each as with and confidential view between Bergren v. aged agreement, father. to a oral evidence written son as 455, Bergren, writing is admissible to show .that legal re- a sham and not to create intended very highest The defendant himself has estab against order judicial sanctity. lished the bound him and he is are entitled to judicial estoppel. play hanky-panky In the He cannot doctrine of with the litigation, earlier the defendant- courts of divorce this state and thus interfere with son, respect prevail integrity judicial order to with system. See wife, against Co., his had to ranch Parkinson v. 10 Cir. California rely 437-438, his father that with F.2d for a discussion he in his name held the Place River Hatten. purpose security of furnishing We are not a bit concerned that the Farmers Administration en Home judicial estoppel matter of was not money buy Hap- able him to borrow raised in the lower court or argued eith tonstall Place. er of parties. general This principle, while denominated control all the superintending over courts judicial estoppel, is sometimes referred to judicial state4 and Wyoming play estops party as a doctrine which system general. duty protect It is our fast and trifle loose with the courts integrity prohibit dealing lightly judicial expres proceedings. It is with its proceedings. liberty We are sion cannot hot of the maxim that one blow decide a any point our A will cold same breath. require,5 par justiсe the ends of just not be maintain inconsis allowed to ticularly point on a so fundamental that we positions judicial proceedings, tent must take cognizance of it.6 117, pp. Estoppel 624- here. § C.J.S.
625.3 hold the We evidence of the whole agreement admissible under the circum- judicial estoppel ac- role of has been stances this case. cepted in Realty this state. Hatten v.Co. 69, 89-93, Baylies, P. *6 Now, of for the statute frauds 561, A.L.R. It was there held that 72 587. applicability. very language and its The position where a man in a is successful inap part Fifth of of the statute leaves previous taken in proceeding, that court plicable. There was no contract for position position conclusive- rises to the of lands; speci sale for a of the title was lent ness. It and sworn constitutes solemn purpose. agreement fic no The involved of acknowledgment of the correctness word, any sale in let alone its sense of
plaintiff’s Following rea- claim. the same of ordinary A contract the sale sense. for Hatten, soning high- reached in it would be сontemplated real estate the statute ly inequitable to for the defendant have frauds, 16-1, W.S.1957, C.1965, is one § prop- decree in holding his divorce case estate, property for the transfer of or real erty not to be his and at the same time price money, equiva for a fixed or its held pro- of an owner interest 495, Metz, 1924, Wyo. lent. Mecum v. 30 ceeding. very inconsistency It is that 503, 576, 79, 574, Wyo. reh. 222 P. den. 32 judicial estoppel will not Defend- tolerate. ant’s P. 1105. previous are 229 statements action 2, V, Wyoming In 4. Article Constitu- 3.The cases bear out the rule. re Estate Section Cohen, 620; 1970, 337, 105 Ariz. 464 P.2d tion. Horton, Okl.1965, 461; Harrell v. 401 P.2d Triangle Highway Baldenecker, 1956, 327, v. Behrens v. 5. Commission 76 State S.D. 864, Development Co., 917; Long Knox, 1956, Wyo.1962, 369 P.2d 77 155 N.W.2d v. extremely rehearing 581, P.2d 408. Tex. 291 292. an on 371 S.W.2d For interesting extensive and doctrine, discussion of the Oedekoven, Wyo.1975, Farley 538 6. Oedekoven see the old case of v. Frost- 1292, Co., 1913, 1295. Johnson Lumber La. P.2d 200, Ann.Cas.1915C, 122, L.R.A.1915A, So.
H43 performance If on side the terms one may fall within agreement fully executed, is must contract is the contract still the statute we part First Hageman not within the applicability of statute of frauds. concern ourselves Clark, 1951, 154, 172, & Pond technically assuming provision, agreement with oral the words embrace At confronted. court is which the if it Even should be considered that there made, it could have time the contract was performance by plain has not been full the mort- anticipated that reasonably been tiff yet convey because he his paper has Administration Home to the Farmers gage Haptonstall in the interest Place of one a period over be in force for defendants, perform his part substantial copy in evidence
year.
(The mortgage
enough
ance is
to remove the contract from
In
term.)
its exact
illegible
Crosby
statute
frauds.
v. Strahan's
trial,
years
eight
event,
some
at
time of
Estate, 1958, Wyo. 302,
ties to these deeds
think that an
proper
In the
case I
merit.
exactly
was con
anything
what
state
but
exception is to be considered.
satisfy
They intended to
therein.
tained
FHA that
requirement
of the
However,
rely
I
mortgaged as
joint
tenancy be
held in
estoppel
that
judicial
to avoid
doctrine of
security
By their deeds
for the loan.
attempting an exhaustive
rule. Without
agreed
As
effectively
that estate.
created
subject, I note that the
of the
examination
upon by
only
some future
them was
subject in 31
opening paragraph on the
joint
had served
time and after the
estate
1, 288,
Estoppel
p.
large
measure
§
C.J.S.
purpose
security
separate
that
as such
principle
predicates application of this
on
original
estates were to be revested
person
of one
which has induced
the act
I therefore must
owners.
person
another
take some action which
why
attempt
ask
this court should
person
the first
prejudiced
he will be
unless
process
changing
torturous and tortuous
may not
is held
his act. One
bound
plain
something they
these
deeds into
were
repudiate
then
his own
mislead another and
3
not?
injury.
Gay
the latter’s
act to
Johnson’s
Co.,
v.
Automotive
Inc.
Wyoming
Service
agree
I
evidence as to this
While
that
787,
Wyo.,
788
City Cheyenne,
367 P.2d
supplemental
or side
was
(1961) it was said:
parol
received
violation of the
evidence
recognize that the
“Even the interveners
rule,
agree
merely
I do not
that the courts
estoppel
defense
available
give lip
v.
service
the rule. See Johnson
plaintiff
of a
have
where
actions
Soulis, Wyo.,
867,
(1975). It
542 P.2d
873
operated
prejudice
aof defendant.”
that,
important
Conceding
as
rule.
(Emphasis added)
is so
stated
Corbin4 “the rule
variable
complete
Similarly,
without
claim
operation
despair
in its
as to be the
of law
knowledge
in 31
subject,
on the
I find
writers,” it is
teachers and
nevertheless
seq. nu-
Estoppel
p. 60 et
courts,
frequently applied by
§
and believe
I
C.J.S.
judicial estoppel,
merous
that
indications
place
that it
a well-established
in our
ever
feel
be inserted
Nagle,
Wyo. 86,
words the
must
26
Stoll v.
86 P.
See
15
carry
Grieve,
Wyo.
therein to
оut
the intended but unex-
(1906),
v.
and Grieve
provisions
agreement,
pressed
am
(1907),
reforma
both of which
H47 analysis transaction, in- equitable estoppel, is of form of treated as a tended said in p. what but the only prejudice. in Id. the deeds case of applied integra- deeds were not intended as the full agreement. testimony tion of their testimony in say that not venture to I do given deeds; vary does contradict or not accepted be may not cases court some goes agree- it on to establish an additional preventing subsequent hearing a as competent ment. it think that was I case, testimony, in this even change of only is, then, applica- to me question 'estoppel be an that there if we admit tion the Statute Frauds.5 Allen, younger preventing him against the my not agreed While I have with testimony his denying the from truth appli- Brother in his dissent Rose as to case himself and his the divorce between rule, cability parol I most evidence action, wife, party also a to this heartily objection para- his to that endorse nonparties estoppel was as to effective graph majority opiniоn beginning action, might pre- estoppel only such to that sentence, with the “We are not a bit con- denying vent him the truth of former estoppel cerned judicial that the matter of testimony. principle recognized Under the not argued in the lower raised court or parol rule is one of that the evidence sub- parties.” either of the law, permitting reliance stantive though was received rule even the evidence 314, Strahan, 302, Wyo. In 78 Crosby objection, American North Ura- without 492, court, 324 P.2d 496 while (1958) this nium, Johnston, supra, Wyo. Inc. v. 77 at refusing find that the that case facts of 348, 330, 316 I it still P.2d think could Frauds, point- it took out of the Statute of estoppel be claimed that was ineffective authority ed quotation strong out with from validity legal to establish the oral carry that “a out mere failure or refusal to agreement. an oral contract within the statute probative lee is Wyo. admissible consider 332, 184 under Bachmann v. proposition P. show a 709 evidence admissible (1919), that cited Hurtt, by appel- agree- 26 nonperformance statute,” frauds does not take the pais “ [6] * * so that is to The doctrine prevent injury showing necessary. arising out estoppel in more than from that subject have been ment or dis- actions declarations which not included it faith writing, good closed and not inconsistent acted on in and which to re permit inequitable Parkinson v. terms. also See * * * injury Roberts, 478, 487, 823, every Wyo. tract. Not trivial 78 estoppel. my As said (1958). previously 826 will invoke the doctrine considering property Frauds, ment real within I can to devise is our Statute writing.” agree be in with the statute of frauds and must specifically (contract performed raised had been The Fifth clause First clause to be year) applicable. within one I think that bar to the action. is the transaction is a sale of within pre memoranda, pleadings, pretrial con do not 6. The statute clause of the the Fifth Wyo. 495, 503, Metz, disclose sider Mecum v. 222 trial little this case 30 order do 576, Wyo. 79, said has been P. reh. 32 229 P. involved. It den. exact theories specially (1924) authority estoppel it not. should prefer Ihmsen, pleaded. Sturgeon Brooks, to refer to donada v. ; McCarthy (1955) v. Union 240 P. A.L.R. 1010 P.2d 675 (1925) Wyo. 308, Ry. Co., where without citation of Meeum this Pacific requires (1942). 8(c), court said: “A will is considered in na W.R.C.P. Rule conveyance by way appointment. pleaded defense. as a ture of raised where legal it would A devisee comes within I am feel definition of bothered by purchase, more care much one who takes to have a and the have been desirable courts are nearly holding, unanimous under ful the issues. statutes delineation of state, agree- as we have in this that an *11 1148 his contract, property, and in to be the owner of the oral promisee of an
The possession of possession the of as tenant was rely on the doctrine order to be able McGee, Wyo., plaintiff.” the In Butler v. that he has be able to show estoppel, must 595, (1962) this substantially for the 373 P.2d 597-598 position changed his con- unjust adhered to the rule of Johnson but incurred that he has and worse : injury and loss.” tinued and unconscionable 316, at 497.
Wyo. 324 P.2d at “However, possession to order for the in apparent part performance of quoted with further be sufficient This court Harrison, constituting contract, oral the acts approval from Bennett an 311, 309, solely to performance 37 L.R.A. be referable must Minn. 132 N.W. enforced, (78 and part as follows to be N.S., pertinent sought the contract 499): might been referable P.2d at not such as have different contract.” * * some other or mere denial The agreement, by the oral the right promised fairly case at that Bar it is clear by plaintiff the con- which existed extent at least of that some the loss being de- after promise, possession premises the oral tinued of virtue of the joint tenancy, not create bargain, does transferred into prived were of statute, may completely con- possession as to but such be exceptional situation an tenancy the statute covers. and we there- very joint with the situation sistent be- in this ambiguity out of the statute fore a case have To take injury or until resulting present in At least of loss was not Johnson. cause such injury plaintiff paid or loss after action was filed the statute. annuls paid from the enforcement Place. His result taxes on the River son which would Haptonstall from the acts on the must arise taxes Place of the statute pursuance mortgage payments. made performance all of the done acts must owned agreement, and such son testified both the oral cattle the situation cattle and that he ran some his alter far that it would the statute on the River Place. It is not clear whether seeking to avoid to allow unjust conscience livestock of the were run on the against be such permitted Haptonstall apparently party, the other who has Place. son his place pursuance parties, took care of the cattle of this change to take both testified, being rendered, as he agreement, service refuse thereafter ad- perform part.’ (Emphasis on his “for what he called rent [the father] place Perhaps indi- down there.” ded) pur- payment cates of rental within the Maki, Johnson v. In the earlier case of payment view of Johnson (1932) theory plaintiff’s with the consistent enforcing difficulty in had no this court properties equit- that the were treated as real purchase an oral contract ably contractually and dis- paid had property purchaser where the properties tinct of the two men. pos- into therefor and moved consideration thereof, moment, being possession Partially digressing session fact of for a by payment accompanied of rental to be well those seems established paid part it was has deceased vendor to his vendee. But instances where one possession required realty, purchase there that “The is for the said consideration reason one is exclusive shared found to unenforceable Frauds, any By payment the vendor.” of rent Statute consideration “virtually acknowledged plaintiff paid vendor he has is refundable.7 Otherwise “Payments mutually made under a contract unen- or where the contract is aban- § forceable reason of the statute of frauds doned.” 37 C.J.S. Statute of Frauds p. (black type). be recovered back where the other up perform sets the statute declines father, only of difficulty party refusing performance would not would have little affirming judgment. but would have Relief can have given money paid purсhaser warping principles which the has without reformation, If pertinence prin- unconscionable. considered ciple deny money promisee that the ánd repaid, all which the does *12 But we not bargain. the benefit his consider. I feel certainly appli- lost is of that case, could cation the principle estoppel must ask ourselves in this how of of to as- be prevent or retribution sert the statute rescission be effected would an uncon- notwithstanding so that the refusal scionable situation. made But since the trial agree- perform part disposed son his of of the to the has of the matter on a ment, their parties theory reformation, finding the can restored to of that the something intended original status? The answer that occurs to do with their only way therein, can me the was not expressed to is that the deeds that I is original position in their do that placed proper not believe the is position properties of their restoration affirmance court. specific performance may is in factual not have been effect situation then, This, reconvey. fully of developed enough the to there are and un- a is not case of a mere loss of the benefit certainties therein I think the case bargain. of language the should be Within remanded to the district court Bennett, supra, Strahan, supra, quoted in with instructions to take evidence on the injury a substantial would from acts manner in arise which the farms have been held in performance agreement, possession and operated done the and and the under principles has so far altered his situation which we have enunciated enter it unjust that would con- against granting and denying specific per- decree son, to permitted science allow the who formance reconvey. to change per- place, take refuse dissent; ROSE, Justice, special and part. on form partial partial and concurrence with dis- McCLINTOCK, sent from the circumstances, dissent of Under such occurs J- promissors me that the refusal of the
carry compelled though out I am promise, from ma- even dissent appreciable jority oрinion is a upholding refusal some the trial time after court. Particularly, could I holding have been made dissent from the without present, majority opinion fraudulent respect then to all intent does with practical parol purposes intents and in a result evidence rule and doctrine of judicial plaintiff. estoppel. fraud I my can conceive Since dissent dis- no equity permitting points, dispositive and cusses these the son and my daughter-in-law position, to retain a I do not two-thirds make comment interest some acres of question land about the except statute-of-frauds only having father to say a one-third interest concur in the dis- Assuming 230 acres. lands are sent McClintock which discusses Justice roughly equivalent acre, per agree in value subject. do not with the as- pect up father would given dissenting have of his opinion substantial which finds portion of his it to property for no other reason have been proper parol to admit evi- than that help he wanted to If dence presented by out a under the son. facts specific perform- appeаl. this case one
ance, I finding have difficult time my judgment, parol evidence rule more one suitable. opinion My dissenting violated. from case,
Under this view the the majority had and its conclusions district court specific position entered order for and from McClintock’s Justice performance general finding on a favor evidence rule follows. I also Allens, majority’s application Jr., estopped deny are
take issue with judicial estoppel. alleged agreement. doctrine of warranty majority opinion upholds deeds in is- There were two the lower 24th sue was dated the court where that here. first court found “ day February, filed of record ‘parties intended, represent- . . county clerk of office Crook agreed ed and lands [River County, Wyoming, Norman B. wherein ** * was revert Place] [sic] Allen, Allen, man, single Norman B. again plain- be the sole Jr., Virginia Allen, R. husband tiff premises [Hapton- and the lands wife, Eaton, appear grantors and Grace * * * stall would be the sole Place] single woman, Deed num- grantee. is the property of the defendants.’ ber reconveyance two is a of the same land questions presented *13 appeal, The as February, warranty day the deed 24th by majority, stated the are: 1966, and filed of record in the office county the clerk of the aforesaid Crook parol pre- “1. Does the evidence rule Eaton, County. In the latter deed Grace complete reformation of a in clude deed woman, single a conveyed grantor as a its terms? Allen, man, single Norman B. Norman agreement recovery “2. Is the oral Allen, Allen, Virginia B. Jr., and R. hus- frauds, void as violative of the statute of wife, rights band joint tenants with 16-1, W.S.1957, C.1965, ...” § of survivorship. ambiguities There were no or relevant in the two
restrictions reservations PAROL EVIDENCE RULE regular deeds and on their face were comforts with respects. all thought: this appellant, It is the contention of the spectrum, lip give “In broad courts ser- Allen, Norman Jr., reconvey- B. that the vice to the rule that a written familiar do, e., purports ance does what i. instrument, face, on its cannot absolute transfers a one-third all of the interest but, by parol testimony be varied as ob- grantees. described namеd Uranium, served North American Inc. Allen, Sr., plaintiff-appellee, urges that Johnston, 332, 348, 1957, Wyo. reconveyance instrument was made for citing P.2d Corbin on Con- purposes security only and that there many tracts has so va- rule § agreement was an oral entered into con- garies despair that it is teach- of law temporaneously with the execution of the ” [Emphasis ers . . and law writers . provided deeds upon payment which supplied] Allens, the mortgage, Jr., would re- convey Allen, Sr., right, all of their statement, only disagree this title and proper- interest in the parol evidence I further contend that ties known as the “River Place.” applied to exclude the testi- rule should
At mony no concerning agreement time—either at the trial court the oral this Allen, Sr., level or here—has asserted that case.1 majority opinion alleged proven.
1. Footnote 2 of the The article makes it must be concept says, page mention of that oral evidence at 383: “ scope writing admissible to show that . . .To come within the is a present annotation, legal sham and not intended a case must involve to create re alleged by 382, 384, lations. 71 A.L.R.2d one is cited for a situation proposition. discussing parties agreement a written Without detail, opposing is a observe that the last-cited relied ,A.I/.R.2d agreement authority proposition article stands kind described for the sham that, court, upon, above; furthermore, if such a deal- defense is relied when to be
H51 Uranium, Inc. v. chases made the note paid. were need American North In pro- repre- not hear the Johnston, court would supra, a written mining inadmissible, say- sentations and held them claims. of certain for the sale vided ing right put that when based have of the claims purchaser engagements writing of con- ownership they are cer- on the instrument definite, tain him it' is to ab- gave on its face concluded veyance, which the claims whole contract of the ownership. The sellers of was re- solute writing duced to and the show- cannot be attempted to introduce contract contradicted, added by parol the instru- to or parties agreed that varied ing that P., page option evidence. merely ninety-day to be ment was that where written merely a In Hoshaw was under claims, contradicted to have these reasons part mony could not be even was that to is not 22, value page 26. given to a bank as such a written transfer, the cannot at the time it was “ . contract fied purchase the sale of certain basing on such Hoshaw v. proof done admissible to by parol (1917), it . prejudicially erred in all written ninety-day option to —the . theory instrument would completely contradicted, circumstances, parol evidence permit it is elementary law that a the testimony. evidence of claims. judgment terms Justice was held: reason for the decision Cosgriff, that such urged holding instruments. prove made . security and not reduced introduced held the Blume, changed, described evidence that oral testi- what it, whole writing option. Cir., destroy receiving it a deed was . prior C. trial court 247 F. at was said purchase provided or modi- to make . J., held writing mining 247 F. ” *14 or to or vary and, For P.2d, this court said: We “ parol evidence rule are or alter 78 Wyo. showing July $7,400 and that he Johnston, court’s ing This fendants “We turn ly Parkinson contracting cannot be altered oral . . stated—is Parkinson, supra, the execution conversations held in North statements the rule — . . purchase exceptional rulings surrounding 1078: . which would terms of a written urge complete [77] then to a had to sell his correct, although quite Citing American parties limitations Soppe subject terms which admitted made the offer to the effect of a by parol testimony, occurring Parkinson v. cases be shown as prior to the execution the well-recognized facts if consideration of previous [332], 316 P.2d was to have of the instrument written instrument Breed, Uranium, the transaction. contradict, page imposed house to directed at limitation between they 826 of Wyo., agreement testimony Roberts, Inc., do broad- vary, raise until time rule De- cit- the the instru- Elkins, 495, vary contradict or the terms In Bushnell v. ment. Evidence See (1926), prom- P. 304 alleged was §§ Am.Jur. 1160; Evidence issory regular really note on its face §§ C.J.S. ”. discussing exceptions . . given for purpose inducing pur- [Em- phasis supplied] pur- chases long store and that so therefore, ing parol available for оur consideration rule, with must have 8(c) Wyoming Rules of Civil agreement under Rule considered the as a effect of Procedure, quoted in detail in foot- [Emphasis supplied] which sham.’’ Therefore, I do not discuss infra. note further observe that the sham theory. philosophy proven, the sham contract pled, nor at was neither is, point any upon relied this case Therefore, vagaries arise as a involved. next time if will be we exceptions protection do not stand here in consequence of the to which of the writ- are ten majority refers restricted contract. showing surrounding
circumstances facts ESTOPPEL JUDICIAL vary contradict they do not or “if terms majority opinion inject seeks to instrument.” contention in the case which was never following I cannot reconcile the state- placed there contemplated majority logic: ment from by them; contemplated nor was it by the “ . . . The here is that state of facts trial It court. was not made an issue on evidence received admissible appeal in this majority says: court. The vary that it does not the terms of “The dеfendant himself has established deed to the man and the deed to straw and he is bound explains pur- defendants judicial estoppel doctrine of . . pose proves an oral [Emphasis supplied] reconvey previous entered into to their says: then [Majority’s execution.2” footnote 2] “We are not bit concerned that the mat- regular The deed on its face—con- judicial ter estoppel was not raised ambiguities tained no whatsoever and was in the lower court or argued by either made at and about the same time as the parties. This court has general purported agreements. all of Under superintending control over all courts hereinabove, the authorities cited there the state (citing, footnote Sec- testimony pur- can be no admitted V, tion Wyoming Article Constitution) pose explaining, changing altering and the judicial Wyoming system in terms of the written instrument. Based general. It is duty protect our its in- court, the case law of this must take prohibit tegrity and dealing lightly with position opposed representation *15 its proceedings. We are at liberty de- purports which say that a deed which on cide a upon case any point which in our conveys property face from A to isB opinion justice the ends require, par- changed by not an oral ticularly point on a so fundamental has conveying the effect of not we must take cognizance it.” [Em- A from to B. The tinkering effect of such phasis parenthetical and supplied] matter destroys integrity efficacy and written me, Estoppel, instruments. For such an at- like consideration, failure of upon tack fraud, frauds, written word makes a mock- statute of and other matters ery very constituting avoidance, form and substance an are affirmative logic reason and accept and I defenses3 cannot it. and upon cannot be relied ex- I take cept pled, no comfort argument from the when nor can be considered third-party purchasers innocent for the first appeal.4 were time on majority opin- judicata, frauds, See footnotes 5 and 6 of the res statute of statute limitations, waiver, any ion for the authorities cited. and matter other consituting an avoidance or de- affirmative 8(c), Wyoming 3. Rule Rules of Civil Proce- party mistakenly When fense. has des- dure is as follows: ignated a defense as counterclaim or a “(c) pleading Affirmative Defenses. defense, counterclaim as a the court on preceding pleading, shall set terms, justice requires, if shall treat affirmatively satisfaction, forth accord and pleading proper as if there had been a award, assumption risk, arbitration and designation.” [Emphasis supplied] contributory negligence, discharge in bank- ruptcy, duress, estoppel, 4.Ranger Cates, Wyo., Ins. failure consid- v. Co. 501 P.2d eration, fraud, illegality, injury by Wyo. 1255; Guaranty Title fellow Co. v. Midland servant, laches, license, payment, release, rtg. Co., Wyo., 798; Mo 451 P.2d Chi- can do we want—no allegation in this case of es- that we whatever is no There precedent mistake, fraud, matter what rules or case toppel, undue influence or say. me, majority opinion, To when over-reaching part of the son with on the says, never respect Estoppel father. until raised for consideration
bеen a
“
liberty
.
.
.
are at
to decide a
We
opinion
majority
here.
first
time in the
point
opin-
any
which in
case
our
trial court was
adjudication by
require,
justice
ion the ends
...”
showed that the deed
that the oral evidence
security in-
was,
reality,
in question
really saying
is
that we will first decide
mentioned
There
not a word
strument.
justice”
think the “ends of
what we
are
pretrial
estoppel in
court’s
about
in a
then arrive
that conclusion
and
order,
appellant
nor
and neither
prec-
final
way
to us whether or not the
suitable
matter
appellee raises this affirmative
statutory vehicles are avail-
edential and
memoranda,
pre-trial
brief or
by pleading,
the issues
raised
able—whether
are
argument
this court.
proceedings—
pleadings pre-trial
—
appellate
the evidence—or the
documents.
in the trial court
A
not raised
question
contemplate
this to be our role—-
do not
supreme
by the
court.
cannot be considered
power
our
mission.
our
James,
546 P.2d
Wyo.,
v.
Mader
—or
Simpson
v. Petro-
my
dissent
I said
my
just
cognizant as
Brothers
I am
leum, Inc., Wyo.,