26 S.D. 42 | S.D. | 1910
This is an appeal by the defendant from a judgment entered upon a verdict of a jury in favor of the plaintiff, and from the order denying a new trial. The action was instituted by the .plaintiff to recover of -the defendant the sum of $500 upon a contract entered into between the defendant, McIntosh, as party of the first part, and the plaintiff, De Rue, as party of the second part, the material parts of which are as follows; “That the party of.the first part agrees to have the party of the second part drill him a flowing well on the N. W. Sec. 26-105-65, Aurora county, S. D., on the terms and conditions: First. Said well shall be cased with not less than 2-inch standard casing at top and 1¿4-inch at the bottom and drilled to artesian flow, if
It is contended by the appellant that the court erred in denying defendant’s motion for leave to amend his answer. The proposed amended answer was served upon the counsel for the plaintiff within 20 days after the original answer had been served. Section 149, Code Civ. Proce., provides: “Any pleading may be
It is contended by the respondent that under the provisions of section 1239 of the Civil Code which provides, “The execution of a contract in writing, whether the law required it to be written or. not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument,” the facts set out in the amended answer were inadmissible on the ground that they would vary or contradict the terms of a written contract. This provision of our Code embodies the common-law rule upon the subject of written contracts, and while “the execution of a contract in writing, whether the law requires dt to be written or not, supersedes all of the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument,” nevertheless, as contended by the appellant, there are exceptions to the rule. And ope of the exceptions seems to be that agreements or representations made prior to the written contract under which the party was induced to sign the contract may be shown; in other words, where the parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms part of the consideration for a written contract, and where he executed the written contract upon the faith of the parol contract or representations, such evidence is admissible. Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Thomas v. Loose, 114 Pa. 35, 6 Atl. 326; Dicken v. Morgan, 54 Iowa, 684, 7 N. W. 145; Cullmans v. Lindsay, 114 Pa. 166, 6 Atl 332; Barnett v. Pratt, 37 Neb. 352, 55 N. W. 1050; Ayer v. R. W. Bell Mfg. Co., 147 Mass. 46, 16 N. E. 754; Davis v. Cochran, 71 Iowa, 369, 32 N. W. 445; 9 Ency. Evid. 350; Ferguson v. Rafferty, 128 Pa. 337, 18 Atl. 484,
In Chapin v. Dobson, supra, the Court of Appeals of New, York held: “The rule prohibiting the reception of parol evidence to vary or modify a written instrument does not apply where the original contract was verbal and entire, and a part only was reduced to writing.” Such, in fact was the case at bar as appears by the allegations of the amended answer. That portion of the plaintiff’s agreement to drill a well that would provide a sufficient flow of water to supply plaintiff’s stock, and which was the inducing cause of the contract, was omitted therefrom. A¥e are of the opinion, also, that the motion to allow service of the amended answer should have been granted for the reason that section 1256 of the Civil Code provides: “A contract may be explained hy reference to the circumstances under which it was made, and tfie matter to which it relates.” The contract in this case simply provides for a flowing well but fails to, in any manner, specify the amount of water to be discharged from said well. For the purpose of understanding what the term “flowing well” was intended to mean in. the contract it was clearly proper for the defendant to allege 'and prove the representations of the plaintiff, and the circumstances under which the contract was made, and the matter to which it related for the purpose of explaining what was meant by the term “flowing well.” The term “flowing well” is vague, ambiguous, and indefinite. What might be regarded, as a flowing well drilled and constructed for the purposes of supplying a family, and which would discharge water enough for such use would clearly not be a flowing well within the meaning of the
The judgment of the circuit court and order denying a new trial are reversed.