108 Neb. 589 | Neb. | 1922
Lead Opinion
This is an aetion brought to recover damages alleged to have been sustained on account of the failure of the defendant to deliver wheat as per the terms of a written contract, as follows :
“July 7,1916. Contract No. 53. This is to certify that I have this day contracted and sold to Gund & Peterson -bushels of wheat at 85 cents per bushel (-lbs. per bushel) to be clean, sound and dry and to grade No. 2, to be delivered into their elevator or cribs at Campbell on*590 or before the 30th day of Aug. 1916. If damaged or inferior grain is delivered and accepted on this contract, the market difference at which such grain is selling under the contracted grade day of delivery shall be deducted from the contracted price. I certify that this grain is in my posession and free of all liens and incumbrances. Dolor Roulier.
“Received of Gund & Peterson five dollars to apply on this contract. Dolor Roulier.”
The answer is a general denial coupled with a plea that the written instrument sued upon was signed by the defendant under a verbal agreement that the same should be retained by the defendant for the purpose of securing the signature of Moise Roulier, a brother of defendant, who was then a joint owner of some wheat with defendant and that after said Moise Roulier signed said instrument the same should be signed by plaintiff before becoming effective as a binding contract. The answer also alleges that Moise Roulier refused to sign said instrument, and that the same was retained by the defendant, and never turned over to the plaintiff, and never signed by the plaintiff, and never became binding as a contract. The answer further alleges a tender of delivery of certain Avheat raised by the defendant and said brother, such tender being later than the making of said writing, at 85 cents a bushel, and a refusal of the plaintiff to accept the same. The reply was a general denial. The cause was tried to a jury, and from a verdict and judgment in favor of the defendant the plaintiff has appealed.
The action was begun in the name of all members of the firm of Gund & Peterson, but later plaintiff, Fred Gund, was by assignment and order of court made sole party plaintiff.
It Avill be noted from the above statement of the case that the plea in the answer to the effect that the negotiations for sale never ripened into a contract and the plea of a tender of delivery on the contract and a refusal of acceptance are not consistent defenses. Further
From the above statement of the pleadings and the evidence it will be seen that one of the principal questions involved is whether or not parol evidence is admissible in an action upon a written agreement to prove an alleged oral condition of the agreement not contained in the writing, to the effect that, unless some specified event happened, the agreement, although effective when signed,' should become void. We conclude that the answer must be in the negative. The case of Stanley v. White, 160 Ill. 605, illustrates the rule involved quite clearly.
It is true that one of the necessary elements of every legal act is that it must be final in its utterance, and that the finality of a writing as a legal act depends upon the circumstances of each case. The mere physical act of transferring the possession of a written instrument is not necessarily a conclusive test as to its finality. In most jurisdictions of the United States even the older rule as to the transfer of the possession of a deed to real estate to the grantee being a conclusive act of delivery is worn away. Curry v. Colburn, 99 Wis. 319; 4 Wigmore, Evidence, sec. 2408. That the finality of a writing as a legal act may depend on a third person’s assent or upon almost any condition precedent to the act going into effect is not doubted. The case of Pym v. Campbell, 6 E. & B. (Eng.) 370, is a leading case in this regard. On the other hand, the fact that the maker may retain the physical possession of the writing, although probative of the intent of the parties, does not necessarily negative the finality of the act. Doe v. Knight, 5 B. & C. (Eng.) 671, a leading case. The finality of the act or so-called delivery of a written instrument is one of intention, and is more a question of fact than of law. Dodd v. Kemnitz, 74 Neb. 634.
The above citations are all cases of conditions precedent to the instrument becoming effective, or, in other words, becoming a legal act. The difficulty comes in distinguishing in practical application the principle
The above stated principles will often be more clearly distinguished and properly applied if it is constantly remembered that the so-called parol evidence rule is not a rule of evidence in any sense, but is rather a rule of substantive law. Pitcairn v. Hiss Co., 125 Fed. 110; 4 Wigmore, Evidence, sec. 2400. The evidence of conditions subsequent is excluded, not because it is oral evidence, or
Applying the above rules to the case at bar we conclude that no fair construction of the evidence, which includes the circumstances surrounding the execution of the instrument in suit, could result in any other conclusion than that such instrument became effective at the time of signing, and that the alleged condition that the contract should become void if not signed by Moise Roulier was a condition subsequent and therefore of no effect. The evidence fails to support the allegations of the answer. The appellee in his brief makes mention of no objection having' been made to a part of the evidence relating to the alleged condition precedent. The application of the statute of' frauds might have been thus waived, but that which was denied validity did not become effective by being introduced without objection. The number of bushels sold was
Reversed.
Rehearing
The following opinion on rehearing was filed October 20, 1922. Former judgment of reversal vacated, and judgment of district cotw’t affirmed.
Upon consideration of the defendant’s motion for a rehearing in this case, the court ordered a reargument,
It was the plaintiff’s theory that the instrument sued upon was a complete, binding and effective contract in all respects, except that the number of bushels of wheat was by inadvertence left blank, and as to that item the plaintiff maintained that he had the right to show by parol testimony the number of bushels sold. As to the other features of the instrument the plaintiff is insistent that its terms could not be modified or explained by parol. The theory of the defendant was that certain conditions precedent were to be performed before the instrument was to become a binding contract, one of them being that the instrument should be signed by Moise Roulier, a brother of the defendant, who was a part owner of the wheat. Defendant insisted that parol testimony was admissible to show that the instrument newer became in fact a contract.
In our former opinion the classes of cases in which parol testimony is admissible and those in which it is not admissible are clearly distinguished, and we are satisfied with the principles of law as therein announced. Upon a reexamination of the record, however, we are now convinced that we were in error in holding that the facts showed a condition subsequent, and that therefore the testimony offered was improper as tending to vary the terms of the written contract. We think it a fair inference from the record that the plaintiff knew before the instrument was signed by the defendant that Moise Roulier was a part owner of the wheat proposed to be purchased. This being true, it is probable that the plaintiff would desire that both the owners sign the instrument, and is a circumstance which corroborates the defendant in his statement that the paper was not to be a contract until signed by his brother Moise.
Considering all of the circumstances in evidence, together with the direct testimony of the defendant that the instrument was not to become an effective contract until
Upon a further consideration of the record, we are convinced that our former conclusion as to the facts was erroneous, and that the issues were properly presented to the jury by the trial court.
It appearing that there is no error in the record, our former judgment of reversal is vacated and set aside, and the judgment of the district court
Affirmed.