*1 plaintiff drew its check in his favor HALLEY, C. J., and BLACKBIRD, IR- $4,520.00 Lacy sold “because he the car to LAVENDER, WIN and JJ., concur. * * * and (Lacy) gave Calvin me * * * * * * $4,555.00. this check DAVISON, J., concurs result. $4,520 owing That left me him less the $35 ” * * * However, commission. ad- JACKSON, V. C. and WILLIAMS mittedly prior dealings because of business J. and HODGES, JJ., dissent. Lacy, plaintiff placed Lacy with possession of the car. court, hearing as this matter facts,
the trier properly considered
all this evidence in- and the reasonable Lacy
ferences deducible therefrom. If actually money surren- received the hut possession
dered of the car to Cates there If,
was consideration for the transfer. through arrangement a fraudulent with BREDOUW, Jack Bredouw and Com d/b/a Cates, Lacy did the car not receive either pany, Error, Plaintiff rights (to Lacy) or the money accrued possession Lacy’s against Cates, JONES, Colbert, Horace S. and Dean M. indi plain- worthless check for a car to which vidually, and Horace Jones S. and Dean M. nothing did not furnish title did Colbert, Capri Compa Motor Hotel d/b/a ny, partnership, plaintiff’s superior enhance claim of a Defendants in Error. rights interest. Whatever No. dealing Lacy evolved from who se- Supreme Court of Oklahoma. rights property plain- cured no May 10, 1966. tiff could right succeed than to no other Rehearing As on Denial of Corrected
through Lacy placed who pos- had been July 10, 1967. by plaintiff. Lacy session Thus had no rights subrogat- could be
ed. findings
The trial court’s
plaintiff did not the owner become
automobile thus could maintain correct,
action was and the demurrer
plaintiff’s properly was sustained. Sibley, The settled rule as stated in Jones l., is: Ok
“Where a is waived in a law ac- court,
tion and the cause tried to conformity given
with the evidence must be
same force and effect as
properly jury; instructed if there be
competent reasonably tending to judgment of trial court ap-
the same will be disturbed on
peal.”
Judgment affirmed.
4i5 *3 Dunn, Tulsa, Charles plaintiff in er- ror.
Crowe, Boxley, Dunlevy, Thweatt, Swin- Johnson, ford & City, Oklahoma for de- fendants in error.
HODGES, Justice. plaintiff This is an action against notes de- series of represent unpaid bal- fendants which plaintiff owing under due and ance de- a written contract entered into brokerage fendants fees on the sale a motel. Bredouw, plaintiff, The is a licens- Jack Tulsa, Oklahoma, operating
ed realtor in Company. of Bredouw and under the name defendants, Horace and Dean The Jones Colbert, partners and of the are owners Capri Captain-Miniver Hotel. The Motor subsequent Corporation purchaser was Capri Hotel Motor and lessor of purchasers. referred to as will hereafter be employee plain- April, an of the approached the defendant on the Jones Capri possibility listing the Motor Hotel agency. Although no their for sale with plaintiff time listing given at this was if an interested he had was advised buyer willing be he to discuss matter. subsequently plaintiff
The
contacted
City, by
York
brokerage firm New
Helmsley-Spear.
brokerage
This
name of
persons
in this
firm knew of
interested
result,
type
syn-
and as a
investment
Captain-
as the
dicate was formed known
Corporation.
An
Miniver
was
plaintiff
whereby
reached
was to fur-
Helmsley-Spear
nish the
firm
listing,
purchaser, and the transaction
was
co-brokerage
handled
basis
on a
with an
any
equal
division
commissions.
apparently
purchaser,
promis-
1959, thirty-six
York
tract of March
New
The
purchase
sory
payable
only
plaintiff
*4
brokerage
the de-
with
written
eight
paid,
notes
defaulting on
fendants,
to
of the
which led
execution
the
note seventeen or the ninth note of the
promissory
question.
in
The con-
notes
plaintiff and refusing payment on
re-
the
provided that
the
the New
tract
event
maining ten notes.
purchaser executed a contract
York
occupied
having
the Ho-
Hotel,
The defendants
purchase
Capri
a com-
the
of the
$45,000.00
owing
approximately
lease,'for
and
sev-
of
tel under the
mission
be
brokers,
payable by
months,
the
the defendants to
New York
enteen
notified
paid
period
years,
they
over a
of three
that
be
were
on December
lessors
monthly
equal
February
installments and evidenced
surrendering
lease. On
by
of
consecu-
by
*5
conditional
alleged an oral
defendant
the
delivery of
the consideration
orally
parties
delivery
in that
the
the
upon
promissory notes were conditional
any force
not
of
agreed the note was
to be
possession
the
remaining in
of
defendants
signed
note
partner
the
effect unless his
or
lessee,
Publish
promises
citing, Harlow
sign.
if he did not
it
to be returned
and was
Walden,
32
168 Okl.
ing
v.Co.
admissibility of
upholding the
The court in
Nichols,
278;
Roff
Bank of
Farmers’
parol agreement stated:
the
834;
Bird
Horton v.
106 P.
25 Okl.
purpose of
the
offered
“Evidence
L.R.A.1916B,
song,
129 P.
35 Okl.
instrument
a written
showing that
Estate, Okl.,
1048; In
Fullerton’s
375
re
conditionally
not consti-
does
delivered
P.2d 933.
varying a written
contradicting or
tute
does
evidence
by parol. Such
instrument
the
of Oklahoma
The statutes of
State
al-
any
or
modification
show
tend to
not
O.S.1961,
provide:
in Title 15
137
§
but
agreement,
of the written
teration
writing,
execution of
contract
“The
its
operative, and
it never became
requires it to be written
whether
law
the
A written
commenced.
obligation never
negotia-
not, supersedes all the
or
it
make
sub-
in force to
must be
contract
stipulations concerning its mat-
tions or
rule.”
ject
the
evidence
ter,
accompanied
preceded
the
or
the
execution of
instrument.”
agree
the oral
present case
Ill the
plaintiff and defendants
the
ment between
exception to this
well established
A
of
prevent
commencement
did
expressed by
this
evidence rule was
contract.
obligations under the written
Nichols,
in Farmers’ Bank of Roff v.
pur
by
parties
signed
contract was
834:
Okl.
P.
promissory
thirty six
suant
to its terms
delivered
signed
“The authorities hold that where
notes were
notes, in
delivery
payee
plaintiff.
of
maker of
delivers
After
a note
obligations
the writ
agreement
not take
of
conformity
it shall
with the
parties,
happening
a certain
effect until the
of
ten contract of the
eighteen notes. At
contingency
performance
paid eight
of a cer-
condition,
tain
the balance of
and where neither the con-
suit was filed on
time
tingency
unpaid
condition
contract was
*6
inclusion of
statute, and, when once
guage of this
testimony in
written contract. There is no
executed,
permitted
parties will not be
purchaser
did
that the
would or
record
testimony,
show, by parol
an
object
provision
to such a
in the written
payee
was had with the
or
agreement
purchaser
contract. A statement that
pay-
paper
to enforce
of such
not
holder
'
“might object” merely speculation and
is
person
persons liable
against
or
ment
Further,
conjecture.
separate
this was
thereunder.”
plaintiff
contract between the
and defend-
In our case we have a written con
part
anyway
ants
was not
of or in
specifically
tract
which
sets out
amount
agreement,
in the
lease
involved
sale and
brokerage
of the
the man
commission and
purchaser.
between the
and the
paid.
ner
it
in which was to be
The terms
they
The defendants further contend that
definite,
clear,
of the written contract were
were induced to execute the written con-
specific, complete
unambiguous.
The
by plaintiff’s
tract and
*7
Ferguson
fraudulently
514;
297,
obtained.”
et al. v.
222 P.
Smith
447;
al.,
150,
Milburn et
221 P.
et
96 Okl.
juris
in
well
this
established
Bank, 101 Okl.
v. Miners’ & Citizens’
al.
rep
diction that when false and fraudulent
281,
viewable
gomery,
165,
460).
motion
176 Ohio St.
198 N.E.2d
the evidence
filed to
or
rer was
authority,
The other line of
we
to direct
verdict.
made
agree,
affecting
holds that error
one issue
make and
plaintiff
did
case
In our
theory
regarded
in a case will be
objections
introduction
preserve his
prejudicial
impossible
where it
to de
ground that
agreement on the
of the oral
upon
termine
which of the two issues or
terms of the written
varied
jury
theories
based its decision. Con
rule.
violation
147,
477;
Brown,
stant v.
189 Okl.
114 P.2d
following
sub-
by the
instruction
trial court
Baldwin,
490,
Maryland
State
v.
112
U.S.
jury
the is-
to the
on both
mitted the case
278,
822; Gonyea
5 S.Ct.
28 L.Ed.
Du
v.
delivery
fraud:
and of
of conditional
sues
luth,
Co.,
225,
Ry.
M. & R.
I.
220 Minn.
19
dispute
is whether or
384;
“The issue
Ry.
N.W.2d
Martin v. Northern Pac.
Co.,
89;
accepted the notes
51 Mont.
either
Heinen v.
Heinen,
770;
64 Nev.
186 P.2d
Maccia
condi-
subject
the cancellation
question
Tynes,
263;
N.J.Super.
v.
39
120 A.2d
thereby sub-
that the notes were
tion and
Newbury,
Stewart v.
220 N.Y.
115 N.E.
voided,
being
or if the notes were
ject to
519;
N.D.,
Plondl,
A.L.R.
Barta v.
voided,
or not
thereby
whether
732;
118 N.W.2d
Tisdale
Panhandle
v.
&
validity by the
their
assertion of
Co.,
Ry.
Tax.Com.App.,
S. F.
228 S.W.
pro-
advantage
fraudulent
to a
amounts
1264;
16 A.L.R.
and see Woolfolk v. Sem
inducing
by fraudulently
defend-
cured
Okl.,
rod,
742;
Louis,
351 P.2d
St.
I. M. &
promise
rely
to not enforce
ants
Ry.
So.
Evans, Okl.,
cancelled.”
Co.
back was
v.
the notes were delivered willing defendant would ac- have perpetrated, that fraud was cept cash sale of the motel as to be did not err. sham, that amount was nominated proposition second Plaintiff’s order to afford tax benefits to certain are purchaser, thereby conspiracy not sustained constituting contrary sufficient are to law. cheat defraud the United States Gov- therefore, An and, examination the record discloses ernment of income tax void plaintiff did not demur against public to the evidence policy; that the trial when defendants assumed the burden of overruling plaintiff’s court erred in motion proof" tending and introduced evidence to strike defendants’ answer. *10 Haifa, Dormeyer Ill. v. cites Plaintiff FORD, Henry County Assessor of Oklahoma case, 532, an Illinois App. N.E.2d County, Oklahoma, Dyer, and Albert Coun not that courts will the contention for ty County, Treasurer of Okla Oklahoma of certain contracts aid in the enforcement homa, Error, Plaintiffs illegality. rule Such a of their because v. not apply not in this case. The BOARD OF TAX-ROLL CORREC price in the of this case shown COUNTY, TIONS OF OKLAHOMA Okla price far as upon agreed was a fictitious homa, Foundation, Inc., Bar Oklahoma It would government was concerned. corporation, Oklahoma As Bar sociation, Defendants Error. present had defendants appear if the pay property able to make the No. 41500. been cost to charged rental basis Supreme Court Oklahoma. $900,000. In purchaser would have April 11, 1967. depreciation event, why I no reason see Rehearing May 23, Denied computed basis of on the could not he agreed. parties price upon which presumed not be wrongdoing will
Fraud party alleged proved must
but Okl., O’Neil, v. relying on it. Oklahoma Co. alleged P.2d 534. against public to have been not shown
policy.
Furthermore, although plead pur
ed in their answer that the nominal price inflat
chase and nominal rentals were per purpose for
ed values chosen depreciation
mitting purchasers take high ad cost basis and secure tax
vantages, question was not raised trial,
plaintiff at for nor in the motion trial, error, petition in
new nor in the but appeal.
is raised the first time Sharp Henry, Okl.,
In
1059, it a contention on an was said based presented court is not
issue the trial appeal; parties and that will
reviewable on permited argue in
not be this court questions
the first time not raised in Wade, 202
trial court. Gibbins Bennett, Sims
321,
rather the the trial court appeal the present should was taken
be affirmed. to state Mr. I am authorized Justice ex- the views herein concurs with
BERRY
pressed. interested to the- was Helmsley-Spear. on a sale and leaseback Capri Hotel The defendánts Motor type arrangement Helmsley-Spear purchase. agreed This then to settle their payment and defend- both to one-half unfamiliar commission for cash nego- $15,000.00. numerous conferences conflicting ants and evidence is held before final con- were whether the tiations was made the same during this approved. It was offer of tract settlement defendants. Helmsley- period pay defendants continued to 28, 1959, March entered into a Spear, on plaintiff, notes held until
Notes
a series terminated the de- the lease was numbered, $1,250.- tively in the amount óf purchaser York fendants and the New and 00 each. The even numbered notes were discharged. obligations were all thereunder payable Helmsley-Spear and the odd plaintiff was On December notes, payable plaintiff. numbered Jones, they by advised the defendant that appears that the evidence From turning property bade in ac- were between defendants negotiations agreement the remain- cordance their completed purchaser York were the New payable. ing ten notes were agree- on 1959. Pursuant to March defendants It was the contention of the on deed ment the defendants executed plaintiff defendants had oral- that Hotel, Capri August to the Motor ly prem- agreed that if the leased and when $225,000.00 purchaser for York the New pur- ises were surrendered back by secured payment balance down with the chaser, no notes would further due $220,- mortgage in the amount of agreement owing. purported This oral was mortgage the amount 000.00and a second of, Upon plaintiff. denied $455,000.00, of of for a total consideration in favor of de- cause found $900,000.00. Contemporaneous with the plaintiff perfected fendants has his deed, execution of this a lease appeal to this court. signed was and the New the defendants purchaser, purchaser The submits that trial court whereby York .the pa- introduction permitting erred Capri leased the to the defend- Motor Hotel at twenty ants an rol evidence variance with the terms of years five annual $90,870.00. parties a written rental also contract. The agreed mortgage that the note and second permitted objec- The trial over $455,000.00 pledged in the amount of tions of the introduction- security purchasers, guaranteeing testimony by separate the defendants of performance provisions their lease agreement parties between the payment and the rental thereunder. provided the event relinquished posses- August 3, 1959, lease and delivered On exe- the defendants delivered, Capri pursuant cuted and con- of the sion Motor Hotel back payee liability assignee his with notice cannot on would he purchaser there be maintained.” unpaid notes. remaining presented for The issue thus our deter- the introduc- plaintiff contends that The application mination of the factual is the the terms varied tion of such situation in the instant case to the above therefore a written instrument and principles. query is whether the oral plaintiff advances inadmissible. agreement is such a condition or contin- a written contract proposition that where gency exception within the evi- unambiguous, complete and is is in itself dence rule. contradict, vary, tending oral evidence terms of the writ- enlarge, or narrow the cited analysis the cases An Hudspeth, ing not admissible. Coker were oral that all shows the defendants Okl., Company Enola Oil contingency which involved agreements Okl., Bogie, from instrument prevented the written position of the defendants Harlow Pub operative. becoming ever be contemporaneous oral Walden, supra, the lishing v.Co. inwas plaintiff and defendants tween promissory note. sought a That precedent. condition of a the nature
has occurred nor the written performed, operative. If a written contract the note never becomes force and operative, exception recognized an action thereon force is in meaning- if it pendableness is to have precedent a condition rule of parol evidence ful effect. applicable. is not Bank First National et al. Gillis easy been an It would have matter the de Frederick, the defendants included in the to have the execution admitted fendant provision written was com which suit promissory note dependent amount the commission was menced, executed alleged that it was possession premises. on their of the leased * * * that representations “upon the being provision There no such writ pay the upon to be called [he] ten defendants should not testimony denying The court same.” permitted escape performing their con agreement said: the oral by establishing obligation tractual a col parol agreement lateral inconsistent with 137, su- (Title 15 O.S. “By section the terms of the written contract. Steb that, a contract where provided it is pra) Co., 244, 214 bins v. Lena Lumber 89 Okl. it- writing writing, that the is reduced Massey, P. Bolon v. agreement is the self P. 685. negotiations that all oral parties, and parol agree- It is our conclusion subject- concerning stipulations con- ment varied the terms of written exe- prior to the which occurred matter purpose. tract and inadmissible for superseded writing are cution of the allege that writ- The defendants also given to cannot be it, and oral ten contract a sham because the sale writing thus executed. contradict prompted tax reasons motel was negotiable very rule that a general is a object purchaser might New York the lan- note comes within in the the oral
alleged
agreement
was inconsistent and
representation
false and fraudulent
in direct contravention to the
terms of
promising to
future
relieve defendants of
written
contract.
The oral
liability in
they
the event
exercised their
changed,
contradicted and
varied
option to cancel the lease.
commission, part
amount of the
of which
already
paid
pursuant
been
that,
to the terms
plaintiff again
contends
of the written contract. To
sustain
con
even in actions based on false and fraudu
tention
defendants in this action
representations,
lent
agreement or
an oral
plain,
be to
would
strike down the
promise
clear and
pro
which is at variance with the
unambiguous
writing.
contract
Union
subject
visions of a written contract are
Co.,
National Bank v. Lavacota Oil and Gas
parol
agree.
evidence rule.
cannot
We
258,
89 Okl.
required. facts is further statement No tion which not been fulfilled. hold error, plaintiff ing parol inappli evidence rule was grounds As claimed opinion advances cable error, states: hereinafter called that propositions. The three “It contended court erred permitting the introduction court erred admitting show defendant to varying testimony purpose of parol for the delivery notes as such conditional of said I do a written contract. the terms of parol alleged. It is well evi settled agree. vary terms dence is not admissible to decisions urges that certain Plaintiff of written evi- Court stand for the rule may separate prove be introduced to vary terms is not admissible dence parol agreement constituting a condition course, is, agreements. There of written precedent taking the writ effect of-