0 P. 000 | Mont. | 1921
delivered the opinion of the court.
The complaint sets forth three causes of action, all in identical terms except so far as the amounts involved are concerned. The first counts upon a contract dated July 28, 1914, for the sale and delivery of 30,000 bushels of wheat, at 73y2 cents per bushel; the second upon a contract dated July
In support of his first cause of action, plaintiff introduced in evidence a writing (Exhibit “A”) in words and figures following, to-wit:
. “Helena, Montana, July 28, 1914.
“Geo. H. Stevens,
“Fort Benton, Montana.
“We confirm purchase of you as follows: 30,000 bushels No. 2 or better Hard Montana wheat at 73%e. per bushed fob. Benton, Montana. September-October delivery at Duluth. Duluth terms. Duluth terms are shipper pays on each ear: Weighing and inspection $.75. Interest on draft. Freight on dockage. Billing—The McCaull-Dinsmore Co., Duluth, Minn.
“Make draft with B/L attached on our Minneapolis office.
“This contract is accepted by
“Geo. H. Stevens,
“Yours very truly,
“The McCaull-Dinsmore Co.”
Evidence was also introduced tending to prove that this exhibit was signed and delivered by defendant; the amount of grain delivered under it; the amount which defendant failed and refused to 'deliver, and the damages suffered by plaintiff in consequence of the breach. In support of the second and third causes of action, plaintiff introduced Exhibits “B” and “C,” respectively, for all purposes of this ease identical with Exhibit “A,” except as to the amounts involved.
As shown by his pleading and evidence, the defendant undertook to make substantially the following defense: Some time prior to July 28, 1914, he entered into an oral agree
Counsel for plaintiff contend that, since each party moved
The principal controversy presented is:. Was error
We entertain serious doubt whether either of the exhibits above is a bilateral contract, but independently of that the question arises: May the defendant by parol evidence establish the fact that each of the exhibits was signed by him, and. delivered to Bailey, for a purpose other than the purpose for which it is now being used—as the basis of an action? The evidence was competent and material and its production did not infringe the parol evidence rule. Defendant did not seek to vary, contradict or even explain the terms of the exhibits. He sought only to show that he signed and delivered them to Bailey to be held by him as memoranda of the grain purchased by defendant for plaintiff’s account, to complete the records and files of the Helena office, and not as evidence that defendant had bound himself personally to deliver the grain.
In Peugh v. Davis, 96 U. S. 332, 24 L. Ed. 775 [see, also, Rose’s U. S. Notes], the court said: “The rule which excludes parol testimony to contradict or vary a written instrument has reference to the language used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the 'object of the parties in executing and receiv
In Clark v. Ducheneau, 26 Utah, 97, 72 Pac. 331, the issue presented was whether the note sued upon was executed and delivered for money borrowed or as security for the performance of an oral agreement for the purchase of stock. The court said: “Under such an issue it was competent to offer and admit evidence to show what the purpose of the parties was in executing, delivering and receiving the note.”
In Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016, the court said: “The general rule'is that parol evidence is admissible to establish a fact collateral to a written instrument which would control its effect and operation as a binding agreement.” To the samé effect are: Hutchins v. Hebbarrd, 34 N. Y. 24; Downes v. Union Congregational Society, 63 N. H. 151; Baldwin v. Carter, 17 Conn. 201, 42 Am. Dec. 735; 2 Elliott on Contracts, sec. 1641; 4 Page on the Law of Contracts, secs. 2176-2179; Bohn Mfg. Co. v. Harrison, 13 Mont. 293, 34 Pac. 313; McCaskey Register Co. v. Bennett, 6 Ala. App. 185, 60 South. 541.
Counsel for plaintiff may not discuss the credibility of
Under this view of the case, the court erred in striking out defendant’s evidence, and in consequence thereof the judgment and order are reversed and a' new trial ordered.
Reversed and remanded.