153 P. 465 | Or. | 1915
Lead Opinion
Opinion by
It is contended that errors were committed in denying the motion and in overruling the demurrer. It is also insisted that the court erred in receiving, over objection and exception, certain testimony, and in giving and refusing instructions, to which rulings exceptions were taken. These alleged assignments may all be considered under some of the instructions referred to. Thus the plaintiffs’ counsel requested the court to charge as follows:
“Gentlemen of the jury, I instruct you that, if you find that defendant delivered to plaintiffs the instrument signed by the defendant, a copy of which is annexed to plaintiffs’ complaint, and refused to comply with the terms thereof, and if plaintiffs performed their part of the agreement, you will find for the plaintiffs.”
This language was given, with the following addition :
“Unless you find that plaintiffs and defendant entered into the oral agreement hereafter referred to.”
Without request the jury were further charged as follows:
“I instruct you that, if you believe there was a parol agreement between the plaintiffs and the defendant that the written instrument introduced in evidence, signed by the defendant, was not to become effective as a contract between plaintiffs and defendant unless one H. Towner should give his consent to defendant giving first mortgage security to plaintiffs as security*599 for a loan to be procured from plaintiffs, tbe said H. Towner agreeing to accept partial payment of tbe moneys due him, and take a second mortgage for tbe balance, and tbat Towner refused sucb consent, then you shall find for tbe defendant. ’ ’
No brief has been filed by tbe defendant, nor did be appear in any manner in tbis court. It appears from an examination of a transcript of tbe testimony tbat tbe cause was tried upon tbe issue as to whether or not tbe writing was delivered. Tbis theory is evidenced by tbe requested instruction hereinbefore quoted. Tbe plaintiffs’ counsel, referring to tbe written instrument, inquired of bis chent, William Miller:
“Did Mr. Weaver band it over to you?”
Tbe witness answered:
“I don’t know tbat be banded it to me; it was signed on tbe desk in my presence; was picked up off tbe desk by me and folded and put away.”
No testimony was offered tending to show tbat tbe writing, after it was signed, was left upon tbe desk or elsewhere by tbe defendant with tbe intention tbat it should be taken by tbe plaintiffs, so as to have irrevocably passed beyond bis control: Allen v. Ayer, 26 Or. 589 (39 Pac. 1); Hoffmire v. Martin, 29 Or. 240 (45 Pac. 754); Payne v. Hallgarth, 33 Or. 430 (54 Pac. 162). Tbe plaintiffs’ possession of tbe instrument would undoubtedly have raised a disputable presumption, in tbe absence of any other evidence, that tbe writing bad been duly delivered: Flint v. Phipps, 16 Or. 437 (19 Pac. 543); Swank v. Swank, 37 Or. 439 (61 Pac. 846); Pierson v. Fisher, 48 Or. 223 (85 Pac. 621); State v. Leonard, 73 Or. 451 (144 Pac. 113, 681).
Though tbe grantee’s possession of a deed, duly executed, affords prima facie evidence of its delivery,
The requested instruction was predicated upon the hypothesis of a delivery of the writing, and the language so employed should have been given without the added clause mentioned. If it can be assumed from the part of the quoted charge given by the court of its own motion that the instrument was in fact delivered, it would necessarily follow that the written obligation became absolute. Such being the case, the extrinsic parol agreement alleged in the answer, providing for a qualification of the writing, was a condition subsequent which did not constitute a defense to the action, and errors were committed as alleged: Section 713, L. O. L.; Wigmore, Ev., § 2435, note 3. But, however this may be, as the certificate of the trial judge shows that there were attached and made a part of the bill of exceptions copies of the entire testimony, the instructions to the jury, exhibits and all other material matters, a careful consideration thereof leads to the conclusion that substantial justice has been administered, notwithstanding any supposed errors: Hoag v. Washington-Oregon Corp., 75 Or. 588 (147 Pac. 756).
It follows that the judgment should be affirmed; and it is so ordered.
Affirmed. Rehearing Denied.
Dissenting Opinion
delivered the following dissenting opinion.
“Defendant alleges that the instrument in plaintiffs’ complaint mentioned, designated a contract, was signed by defendant in pursuance of negotiations then and there had between them, whereby defendant applied to plaintiffs for a loan of $5,500, offering as security therefor his farm of about 198 acres situated near Elgin, Union County, Oregon, upon which a mortgage obtained in favor of one H. Towner, and without the release of which defendant was unable to give plaintiffs first mortgage security.
“That thereupon.the parties hereto agreed defendant should write said H. Towner and ascertain if he would consent to release his mortgage, and defendant signed said instrument in pursuance of an agreement then and there had between them that the same was to become effective conditioned upon consent as aforesaid being obtained from said H. Towner; otherwise to be and remain void and of no effect.
“That immediately thereafter defendant communicated with said H. Towner, who refused to release his*603 mortgage as aforesaid, all of which defendant immediately communicated to plaintiffs. ’ ’
A general demurrer to the new matter in the answer was overruled, and the reply traversed it. A jury trial resulted in a verdict and judgment for the defendant, from which the plaintiffs appeal.
It will be noted that the defendant says he signed the instrument upon which the plaintiffs base their action “in pursuance of an agreement then and there had between them that the same was to become effective conditioned upon consent as aforesaid being obtained from said H. Towner; otherwise to be and remain void and of no effect. ’ ’ This new matter does not question the delivery of the instrument. It is an attempt to ingraft upon it a conditional defeasance. The Standard Dictionary defines the word “pursuance” as:
“The act of pursuing; a following after or following out; prosecution; usually in the phrase ‘in pursuance of.’ ”
As applicable to the instant case, it refers to something prior to or concurrent with the execution of the document in question. According to the answer, this proposed defeasance was agreed upon before the signing of the contract upon which the plaintiffs declare. The writing is plain and explicit. There are no ambiguities in the instrument, either apparent or latent. In Ruckman v. Imbler Lumber Co., 42 Or. 231 (70 Pac. 811), the parties had executed a written memorial of their stipulation, and afterward, in defense of an action at law upon the same, the defendant resisted the plaintiff’s demand by alleging a contemporaneous parol agreement that the latter would discharge certain liens on the property involved. Mr. Chief Justice Moore, writing the opinion, said:
*604 “The rule is universal that, as between the parties and their representatives and successors in interest, except where an alleged mistake is controverted by the pleadings, or in case the validity of the contract is the fact in dispute, parol' contemporaneous evidence is inadmissible to vary or contradict the terms of a written agreement. * # Plaintiff having never stipulated to discharge the liens upon the engine and boiler, there was no ambiguity in the agreement quoted, and the averment in the answer that there was a parol agreement to the contrary was demurrable, and, though issue was joined thereon, it could not be established by parol testimony, and no error was committed in refusing to permit the witness to answer the question propounded to him.”
On the demurrer to the' answer in this case the precedent just quoted is controlling; for it is manifest from the language of the plea that it is an attempt to incorporate into the contract an additional stipulation contrary to the terms thereof. It is not a case where part of the agreement is in writing and part in parol. In the American Contract Co. v. Bullen Bridge Co., 29 Or. 549 (46 Pac. 138), Mr. Chief Justice Moore quotes with approval the following language from West v. Kelly’s Exrs., 19 Ala. 353 (54 Am. Dec. 192):
“If the instrument is perfect and complete — that is, if it contains the entire contract — then the rule is inflexible that parol evidence cannot be received to add another term to the written instrument, or to change its legal effect. * * But, if it be apparent that the instrument in writing contains but a part of the agreement entered into by the parties, then parol proof may be received to prove the entire contract; otherwise the contract could not be brought before the court. * * But the parts of the agreement proposed to be proved .by parol must not be inconsistent with or repugnant to the intention of the parties, as shown by the written instrument; for, to receive parol proof of a part*605 not reduced to writing, which is directly repugnant to the intention of the parties, as expressed in the written instrument, would at once annul the rule that parol evidence cannot be received to contradict or vary the terms of a written agreement.”
As throwing light on the question in the instant case, we quote from the testimony. While the defendant was on the stand as witness on his own behalf counsel for plaintiff asked him- this question:
“Mr. Weaver, was that agreement you mention that you would borrow the money from Mr. Miller if Mr. Towner would take a second mortgage, was that in writing?
“A. No, sir. I did not sign this agreement until Mr. Miller agreed not to have this in effect unless Mr. Towner did agree to it.
The law is thus stated in Section 713, L. O. L.:
“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. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in Section 717, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud.”
We remember that this is an action at law. The defendant does not attempt by cross-bill in equity or otherwise to allege a mistake or imperfection in the writing. On the contrary, he explicitly avows the signing of the instrument involved. Neither does he aver any act of fraud on the part of the plaintiffs by which
‘ ‘ The mortgage must be presumed to contain all the terms of the contract entered into at the time of its execution, and we must look to it and the notes copied therein to determine the time of the payment, and thus ascertain when the mortgage is subject to foreclosure. The parol agreement, if any, made and entered into prior to or at the time of the execution of such mortgage, cannot be relied upon or used to contradict or vary the terms of such notes and mortgage for the purpose of ascertaining the date of their payment or the time within which such mortgage is subject to foreclosure. So we hold that the evidence offered was incompetent for thejpurposes for which it was intended; that the notes were due and the mortgage enforceable at the time of the commencement of the suit; and that such parol agreement cannot be used as a hindrance to the prosecution of the suit for the foreclosure of the mortgage.”
In Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135), the effort of the defendant was to prove that a certain contract which he set out was intended to be given in full satisfaction of the claim and mortgage mentioned in the complaint; that the written agreement given in the answer was so accepted by the plaintiff, and that, as a consideration additional to the one stated in the written instrument for its execution, the plaintiff agreed to dismiss the foreclosure suit. Mr. Commissioner Kino, after stating the ordinary rule against the admission of parol evidence either to contradict, add to, detract from or vary the terms of a written instrument, used this language:
*608 “But it is argued that it is always permissible to show by parol other and additional consideration than that specified in the contract, and that the averments are sufficient for that purpose; and this position is tenable where a monetary consideration is specified: Burkhart v. Hart, 36 Or. 586 (60 Pac. 205). But in the case before us the consideration specified in the writte'n contract consists of certain acts to be performed, and the authorities are * * unanimous in holding that, where the statement in the written instrument as to the consideration is of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to perform certain acts, it cannot be changed or modified by parol or extrinsic evidence. A party has a right to make the consideration of his agreement of the essence of the contract, and, when this is done, the consideration for the contract, with reference to its conclusiveness, must stand upon the same footing as its other provisions, and accordingly cannot be affected by the introduction of parol or extrinsic evidence” — citing authorities.
See, also, Tallmadge v. Hooper, 37 Or. 503 (61 Pac. 349, 1127); Stoddard v. Nelson, 17 Or. 417 (21 Pac. 456); Marx v. Schwarts, 14 Or. 177 (12 Pac. 253); Weidert v. State Ins. Co., 19 Or. 261 (24 Pac. 242, 20 Am. St. Rep. 809); Williams v. Mt. Hood Ry. Co., 57 Or. 251 (110 Pac. 490, 111 Pac. 17, Ann. Cas. 1913A, 177); Gill v. Columbia Contract Co., 70 Or. 278 (141 Pac. 163).
It will be observed that the language of the answer is-that the defendant “denies each and every material allegation in said complaint contained. ” We may well doubt if this constitutes a denial or amounts to more than the traverse of a legal conclusion: Montour v. Purdy, 11 Minn. 384 [Gil. 278] (88 Am. Dec. 88); Dodge v. Chandler, 13 Minn. 114 [Gil. 105]; Pry v. Hannibal etc. Ry. Co., 73 Mo. 123; Edmonson v. Phillips, 73 Mo.
Passing this question, however, it is not contended in the testimony for the defendant that the writing was not delivered. He makes no pretense but that he voluntarily parted with the custody of the writing which he had signed, and left it with the plaintiffs. If the answer challenges the delivery of the instrument, it does so by the merest technicality, but that question is not raised in the testimony. The supreme effort of the defendant was to incorporate in the written agreement a nullifying contemporaneous parol condition. The instrument in question was found in the possession of the plaintiff, from which we presume, under Subdivision 11 of Section 799, L. O. L., “that things in the possession of a person are owned by him,” and that the writing had been regularly delivered to the plaintiffs upon its execution by the defendant. It is true that their counsel asked the witness Wm. Miller, one of the plaintiffs:
“Did Mr. Weaver hand it over to you?”
“I don’t know that he handed it to me; it was signed on the desk in my presence; was picked np off the desk by me and folded and pnt away. ’ ’
There is nothing in that testimony, however, which would authorize us, as a matter of law, to say that it contradicts a delivery or overcomes the presumption of delivery arising from the possession of the instrument by the party who relies upon it. To hold to the contrary would make it indispensable that in every transaction involving the delivery of an instrument the party executing the same actually should take it into his hands and pass it into the manual custody of the opposite party. This would be a strained and unwarrantable construction to be placed upon any business affair. Neither does the testimony of Miller, quoted above, fall short of tending to prove delivery, because he says nothing about Weaver’s intent in the occurrence described. A person may sometimes state his own intent; but no witness can declare the mental purpose which actuates another. The jury alone must determine that from the evidence of acts and statements of the one whose intent is in question.
The plaintiffs requested the court to instruct the jury thus:
“I instruct you that, if you find that defendant delivered to plaintiffs the instrument signed by the defendant, a copy of which is annexed to plaintiffs’ complaint, and refused to comply with the terms thereof, and if plaintiffs performed their part of the agreement, you shall find for the plaintiff.”
The court, however, modified the request by annexing to it this language, “unless you find that plaintiffs and defendant entered into the oral agreement hereafter referred to,” alluding to the agreement re
The judgment should be reversed and the cause remanded for a new trial.
