166 N.W. 805 | N.D. | 1918
Lead Opinion
Appeal from the judgment of the district court of Burleigh County, and from an order overruling a motion for a new trial.
The complaint states an action for recovery upon a promissory note bearing date December 4, 1914. The note is for the sum of $218, with interest at 10 per cent. The complaint admits the payment of $130, and claims a balance due upon said note of $107.37.
The answer admits that the defendant is a foreign corporation, and also interposes a general denial, and then sets up the following defense to such note: “That plaintiff and defendant entered into an agreement whereby defendant was to receive into his possession and put up or construct certain galvanized corrugated grain bins manufactured by the plaintiff, and plaintiff was to sell such grain bins to the public after
“That thereafter the plaintiff sold the said grain bins from the proceeds of which the sum of $130 has been indorsed upon said note as a payment.
“That the plaintiff is not a hona fide holder of the note in suit for a valuable consideration, but received the same with notice of the foregoing facts, and without paying any consideration therefor.”
The defendant for a counterclaim states that, prior to the execution and delivery of the note described in the complaint, plaintiff and defendant entered into an agreement whereby plaintiff was to consign to defendant certain knocked down, galvanized corrugated grain bins, and defendant was to receive the same into his possession, and plaintiff was to sell the same to the public; and defendant agreed to construct or put them up, for and in consideration of the compensation hereinafter mentioned. That according to the terms of said agreement defendant received into his possession certain grain bins consigned to him by plaintiff, and defendant paid the freight charges thereon in the sum of $27, no part of which has been paid, except as hereinafter stated. That according to the terms of said agreement, defendant constructed and put up three of said grain bins, for which services, according to the terms of said agreement, the plaintiff agreed to pay the sum of $30 per bin, or a total sum of $90, no part of which has been paid except as hereinafter mentioned. Defendant further states that the plaintiff, in connection with the selling and delivering of such grain bins, and in collecting pay for same, hired from the firm of Bryan & Son, of Bismarck, North Dakota, certain automobiles and drivers for which plaintiff agreed to pay said Bryan & Son the reasonable value for the use and service thereof, which was and is the sum of $75. Then follows an allegation of the assignment of such claim of Bryan & Son to the defendant. The defendant claims by reason of such counterclaim $27 due for freight, $90 for putting up or constructing the bins, and $75
To this answer and counterclaim the plaintiff interposed a reply, the substance of which is that on the 5th day of August, 1914, at Bismarck, North Dakota, the plaintiff and defendant entered into two certain sale contracts and orders in writing in and by which plaintiff sold to defendant, and the defendant bought of the plaintiff, three certain 1,000-bushels capacity Dakota-lVIontana special grain bins, at the price of $105 each f. o. b. Aberdeen, South Dakota, and two pair of channel irons for partitions; that thereafter, in pursuance to said written sale contracts and orders, the plaintiff delivered to said defendant at Aberdeen, South Dakota, said three grain bins and two pair of channel irons for partitions. Thereafter, on October 24, 1914, the defendant paid the plaintiff the sum of $105 upon said contracts; and thereafter, on the 4th day of December, 1914, the defendant, in pursuance of the terms of said contracts hereinbefore mentioned, executed and delivered to the plaintiff the note sued upon and described in the complaint herein, which note was given as a settlement of the amount due plaintiff from the defendant under said contract; that in and by said agreement, among other things, it was agreed that the defendant should sell in the territory of Bismarck and vicinity the grain bins manufactured by the plaintiff and mentioned in said agreement, and was also to set up any grain bins sold by him to the farmers in said territory, and not to leave same to be set up by the farmers, and guaranteed to erect the bins in a first-class and workmanlike manner and place anchors in the ground, put in all bolts, and to do any necessary work to make the bins perfect when turned over to the farmer. That the said channel irons for partitions were of the reasonable worth and value of $8; and that they were settled for between plaintiff and defendant at. such price of $8.
Plaintiff, further replying, denies each and every allegation, matter of fact, and thing set forth and alleged in said counterclaim except as hereinbefore admitted or qualified, and specifically denies that it is indebted to the firm of Bryan & Son in the sum of $75 or any other sum or amount whatever, or that it ever hired any automobiles and drivers, or either, from said Bryan & Son.
The foregoing reply contains the language which substantially sets
It appears that one of the grain bins had been paid for by the de' fendant in the sum of $105, and the remaining two bins each $105 plus $8 for the channel irons, in all the sum of $218, is represented by exhibit A, the promissory note in question executed and delivered by the defendant to the plaintiff. We have set out in substance all the pleadings, for the merest inspection of the case determines there is an oral contract relied upon by the defendant, claimed to have been entered into prior to the execution of the written contracts, exhibits B and 0, and prior to the delivery of the note in question. The defendant, while not denying the execution of the written contracts, exhibits B and C, claims that contemporaneously with the execution of such written contracts it had an oral agreement with the plaintiff through its agent McKenzie, which is fully set out in defendant’s answer. The merest inspection also further determines that the agreements and covenants set forth in defendant’s answer, and relied upon by him as a defense against payment of the note, are entirely inconsistent with and opposed to the terms of the written instruments, exhibits B and C, which was the agreement and contract in writing entered into prior to the execution of tho note, and which written agreements and contracts are claimed to cover all the agreements and covenants between the parties with reference to the subject-matter, and which are claimed to have been executed and delivered after all negotiations were had with reference to the subject-matter of the contracts. It is apparent-that the terms of the alleged oral agreement are so in conflict with the written contracts, and the oral agreement, if given its full meaning, so varies the terms of the written contracts, that the alleged oral agreement and the written contracts cannot stand together. If the oral agreement contended for by the defendant is to be given full force and effect, then the written contracts must fail. The purported oral agreement is not such as relates to some matter or part of the subject-matter upon which the written contract is silent. Neither is the purported oral agreement one which is sought to be proved in order to explain any of the terms or parts of the written contract. Either the alleged oral agreement must be accepted and proof allowed of it, or it must be entirely rejected and testimony tending to
The appellant assigns fifty-two errors. In his discussion of such errors the appellant has grouped them into four divisions. The first includes all errors from 1 to 31 inclusive and relates to the exclusion of evidence at the trial over the objection of defendant’s counsel. Most, if not all, of the evidence thus excluded related to the effort of the defendant to introduce testimony to prove his alleged oral agreement. Timely objection was made to such evidence, and it was ruled out by the trial court upon the theory that all of such evidence tended to vary the terms of the written contracts admittedly signed and executed by the defendant. In this we think there was no error on the part of the court. Th<? written contracts in question are full, complete, and comprehensive, and deal fully with the subject-matter of the contracts. Such written contracts specify that they are entered into between plaintiff and defendant at Baldwin, North Dakota. They specify the price of bins of different capacity. They specify that the bins purchased by the defendant are to be paid for in cash or before the 1st day of October, 1914, and, if they are not paid for, then the amount should draw interest at 10. per cent, and the defendant was to execute and forward to the company bankable notes for the purchase price of the grain bins. The defendant also agreed not to handle any other grain bin of a competitor company during the life of his contract. He agreed to set up any grain bin sold by the defendant to the farmers in- the territory, and not to leave the same to be set up by the farmer, and agreed to erect the bins in a first-class and workmanlike manner, put in anchors in the ground, and put in elbows, and do any necessary work to make the bin perfect when the same was turned over to the farmer. The defendant agreed in said written contract that all grain bins purchased by him'during the season were to be purchased under the agreements contained in the written contract. The price of the grain bins to the defendant was f. o. b. Aberdeen, South Dakota. This contract is executed on the 5th day of August, 1914, by the plaintiff and defendant. There is no allegation of fraud in the signing or procuring of the signing and execution of the contract. It is a plain, full, and complete contract with reference to the subject-matter it covers. There is nothing contained in the contract
It is a well-settled rule that oral testimony cannot be introduced to vary the terms of a written contract. The alleged oral agreement relied upon by the defendant and set forth in his answer as part of his defense, and again set forth in his counterclaim, is entirely different from the written contract. Section 5889, Comp. Laws 1913, reads as "follows: “Written contracts supersede oral negotiations. The execution of a contract in writing whether the law requires 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 language of this section appears to be perfectly plain and is easily understood. It would seem that this is a most salutary rule of law, the intent of which is to add certainty to "business transactions, and to afford a means whereby positive proof of the agreements of parties may be had. A written contract is a protection against the inability of the mind to retain all that was said and done concerning the terms contained in the contract. They protect one against the lapse of memory, and retain the terms of the contract as made, thus affording a safe receptacle to which the mind may return and be refreshed as to the actual terms of the contract. South Dakota has a statute on this subject similar to the section of the North Dakota Compiled Laws of 1913 just above set forth. In the South Dakota case of DeRue v. McIntosh, 26 S. D. 47, 127 N.
This language was quoted with approval in the case of Erickson v. Wiper, 33 N. D. 206, 157 N. W. 592. To support this contention, cases from several states are cited in the South Dakota case. The South Dakota case was one where the plaintiff agreed to construct for the -defendant a flowing well on defendant’s farm. The agreement was reduced to writing, and the supreme court of South Dakota, in analyzing a part of said written contract, used the following language: “It will be observed that the contract in this case provides that the plaintiff shall drill a flowing well on the terms and conditions specified, and drill and sink same to an artesian flow if possible, granitical formations •excepted. The amount of water that should be discharged from such well is not provided for in the contract.” The defendant in the South Dakota case served an amended answer in which he alleged that at the time of the making of the contract for the construction of said well, the defendant was the owner of a large tract of land upon which said well was to be drilled. That said land was used and designed to be used as a •.stock range, whereon the defendant kept and intended to keep a large number of cattle and horses, and that the sole object and purpose in •drilling and constructing said well was to procure a flowing well to furnish sufficient water for said stock, all of which was well known to the plaintiff. In his original answer the defendant in the South Dakota case alleged that plaintiff abandoned said well before he drilled the same lo the artesian flow, and failed, neglected, and refused to drill the same
So far as the written contract in this case is concerned, it is full, fair, .and specific in setting forth the terms of the contract. The written •contract was one signed by the plaintiff and the defendant, whereby the defendant purchased certain grain bins upon certain terms and conditions specified in the written contract. Such contract was duly executed by both parties. All testimony introduced or sought to be introduced for the purpose of showing a prior contemporaneous oral contract with reference to the same subject-matter treated in the written contract was properly excluded by the court, as was other testimony which tended to vary the terms of the written contracts in this case, exhibits B and O. Referring to assignments of error 38 to 42, which have reference to .•alleged errors in the court’s instructions, we find no error in such instructions. There was no error in the court receiving the verdict of the jury and entering judgment in favor of the plaintiff. The defendant’s motion for a new trial was properly denied. The verdict of the jury is .sufficiently supported by the evidence.
With reference to the counterclaim in all its parts or subdivisions, including the livery hire of auto rigs and the drivers thereof, all of such matters and all matters in the counterclaim were questions of fact submitted to the jury and by them determined against the defendant. The finding of the jury upon these questions of fact is conclusive.
The order overruling the motion for a new trial and the judgment .appealed from are affirmed, with costs.
Concurrence Opinion
(concurring specially). On December 4th, defendant made to plaintiff a promissory note for $218, with interest at 10 per •cent. Payment of $130 was made October 1, 1915. Dor the balance, with interest, amounting to $107.35, the jury found a verdict against defendant, and he appeals.
The defense is that defendant arranged with the plaintiff to receive and set up certain of its galvanized grain bins,' and as evidence of good faith he gave the note without any consideration. As the evidence shows, the plaintiff is a manufacturer of grain bins at Aberdeen, South Dakota.
The defense is a pure and manifest sham, and it well deserves a severe rebuke.
Judgment affirmed.