104 P. 873 | Mont. | 1909
delivered the opinion of the court.
The complaint in this action is quite lengthy, and a sufficient summary of it may be made to fairly present the controversy without setting it forth in full.. It appears from the complaint that the Briggs & Ellis Company is a New Jersey corporation
The complaint then sets forth that on April 17 a memorandum in writing was prepared by the defendants (presumably intended to embody all the terms of the oral agreement), and presented to plaintiff for his signature; that such memorandum did not contain any reference whatever to the employment of plaintiff as local manager, and, because of such omission, plaintiff at first refused to sign the same; “that on such refusal said defendant W. Dixon Ellis then and there agreed with plaintiff .that such omission should make no difference in the real contract between the parties ; that neither he nor said defendant company had ever had a written contract with their manager in Sweet Grass county, and that they would put such employment on record in the minutes of their directors’ meeting, and that if plaintiff would sign said memorandum, and would transfer his personal property and with his wife deed his real property in accordance with the terms of their oral agreement theretofore made, he, the said defendant W. Dixon Ellis, and his said company would make plaintiff the manager of said company upon the salary as agreed upon during all of the remainder of his active business life”; that plaintiff, relying upon the promise of the defendant Ellis, and believing that he was acting in good faith and not otherwise, signed the memorandum, and on April 18 he and his wife executed and delivered to the Briggs & Ellis Company a deed conveying the real estate, and also transferred to said company the personal property, and received the consideration first above mentioned; that plaintiff at once resigned as receiver of the land office, and presented himself to perform the duties of local manager for defendants; that the defendants refused to employ him, and refused to pay him any salary, or allow him anything for expenses or for the living expenses of himself and wife; that defendants so negligently managed their business during 1906 that it resulted in a loss, whereas by proper management it should have shown a profit. It is also alleged that the oral agreement to employ plaintiff as local manager was fraudulently made,
The defendants interposed a demurrer, which was sustained, and plaintiff, electing to stand upon his complaint, suffered judgment to be rendered and entered against him and appealed to this court.
This is an action for damages for deceit, predicated upon section 5072, Revised Codes, which provides that “one who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers,” and upon subdivision 4, section 5073, which reads as follows: “A deceit, within the meaning of the last section, is: * * # (4) A promise made without any intention of per
Section 7873, Revised Codes, provides: “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms,' and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute. * * * ” There is not any attack made upon the validity of the written agreement; and, since it appears from the complaint that at the time the plaintiff signed the written contract upon April 17 he fully understood and appreciated that it did not contain any provision for his employment as local manager, but nevertheless voluntarily signed it, he will not be heard to say now that such writing does not
In Seitz v. Brewer’s Refrigerating M. Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837, the court said: “Undoubtedly the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.” That case is cited by this court in Armington v. Stelle, 27 Mont. 13, 94 Am. St. Rep. 811, 69 Pac. 115, where, after reciting the sections of the Code above, it is said: “The statutory provisions cited are but declaratory of the common-law rule (1 Greenleaf on Evidence,
The only remaining inquiry, then, is: Was the promise to employ plaintiff as local manager one of the essential terms of the oral contract itself, or was it only a collateral agreement made by the defendants as an inducement to the plaintiff to dispose of his property? This inquiry is fully answered by the complaint, which alleges that: “It was distinctly understood between this plaintiff and said defendant D. Dixon Ellis that the employment and appointment of plaintiff as manager of the business and properties of said defendant Briggs & Ellis Company, with headquarters in Sweet Grass county, for such time as his health, strength, and age might permit him to be in active ‘ business, at a salary of $2,000 a year and expenses, and the living expenses of himself and wife, was the most important condition of said agreement, and the inducement, and only in
Unfortunately for plaintiff, he consented to the writing of April 17, which completely superseded the prior oral negotiations, including the promise to employ him, and the statutes of this state now forbid him to say that there ever was any oral promise for his employment. In frankly stating all the facts out of Avhieh this controversy arose, the plaintiff has successfully pleaded himself out of court. His complaint does not state any cause of action.
The judgment is affirmed.
Affirmed.