| Or. | May 24, 1921
Lead Opinion
“The act of equipping or fitting, or the state of being equipped, as for a voyage or an expedition; whatever is used in equipping; the collective designation for the articles comprising an outfit. As applied to transportation, the necessary adjuncts of a railway; the rolling stock and other movable property used in operating the railroad, as cars, locomotives, etc.”
In United States Rubber Co. of California v. Washington Engineering Co., 86 Wash. 180" court="Wash." date_filed="1915-06-26" href="https://app.midpage.ai/document/united-states-rubber-co-of-california-v-american-bonding-co-of-baltimore-4734200?utm_source=webapp" opinion_id="4734200">86 Wash. 180 (149 Pac. 706, L. R. A. 1915F, 951), the court says:
“ ‘Equipment’ is, what the word imports, the outfit necessary to enable the contractor to perform the agreed service, the tolls, implements and appliances which might have been previously used or might be subsequently used by the contractor in carrying on other work of like character.”
The duty to equip would not carry with it the duty to put the sign in any specified place or swing it in any particular manner.
“To set np or fix in position for use or service; as, to install a heating or lighting system. Installation, the whole of a system of machines, apparatus and accessories set np and arranged for working, as in electric lighting, transmission of power, etc.”
The New Standard Dictionary defines the word:
“To establish in a place or position; as to install a guest at the fireside. To place in position for service or use; as, to install a hot-water system.”
Although the use and installation of electric signs is modern, it is very common and general, and they are now very numerous in the cities and can be found in almost every little town, and it is a matter of common knowledge that they are used for advertising purposes. We have a right to assume that the defendants made the contract to advertise their business. It was the duty of the Power Company to install the electric sign specified in the contract, and put it in place ready for use and to furnish all the equipment.
“Q. Do you know who put the sign up there?
“A. I was there the day they were working on it. The only man I know by name was this man Housh.
“Q. This man, the foreman of the Pacific Power and Light Company? [Indicating.]
“A. Yes, sir.
“Q. Did you have anything to do with the putting of the sign up there?
“A. Nothing at all.
“Q. Did you give him any orders as to where the sign was to be placed?
“A. No.
“Q. "What, if anything, did you say to Mr. Housh that day?
“A. Mr. Housh told me the sign had arrived and I said, ‘Hang it up,’ and I supposed they knew their business and would hang it properly.
“Q. Did you say anything to him further or did he say anything to you that day about this feeder wire? “A. No. * *
*506 “Q. Did you see the meu working to put it up there?
“A. Yes, sir, I saw them hanging the sign.”
For such reasons each of the instructions were both erroneous and prejudicial. There was no parol evidence of any contract that the sign should be hung in any particular place- or specified manner.
F. M. Housh was the construction foreman for the Power Company and the sign was installed under his directions. He testified that he had a talk with Mr. Strauss the morning that the sign was hung.
“Q. "What was the talk?
“A. I simply asked him if he had any specific place to hang the sign. He said no, if I remember right. He told me no, and I suggested that we should hang it there in the center of the building before the arch or on the side of the building lower down.
“Q. Did you ask Mr. Strauss where the sign was to be hung?
“A. I asked him if he had any preference as to where it was to be hung.
“Q. And he did not direct you to any particular place?
“A. No, only he said it was to be near the center of the building.
“Q. You knew that the high tension wire extended right out there a few feet, didn’t you?
“A. Yes, sir.
“Q. You knew that the sign was to be a swinging sign?
“A. Yes, sir.
“Q. And swinging out from the entrance of the Theater?
“A. Yes, sir.
“Q. And you knew when you were hanging it that it would be unable to swing out at that time?
“A. Yes, sir. * *
“Q. You did not realize that the sign could not be swung out?
*507 “A. Not until after the sign was swung up into place. * *
“A. It was called to my attention that the sign was not swung out into the street the way it should have been.”
Upon the question as to how the sign was installed Housh further testified:
“Q. Wasn’t it practical to hang that sign out at an angle such as the sign was left at?
“A. No.
“Q. Leaving the sign out at the angle you did was not giving the results to these people that they were supposed to have and that they had paid for?
“A. No.”
Affirmed.
Concurrence Opinion
The controversy in this case is in regard to instructions given by the trial court to the jury concerning a contract for an electric sign, the material portions of which, so far as written, are as follows:
“Upon the conditions hereinafter set forth, the Company agrees to equip the premises or location, as the case may be, of the Customer at 539 Commercial Street, in Astoria, Oregon, with a system of electrical wiring and connections for the operation of one electric sign of 37-25 watt lamps, and to furnish and install said sign for the Customer and also to furnish the necessary lamps for such service included in the monthly payment hereinafter named. The sign to be as follows: One double face Novelite Interchangeable three line reading board 3'6"xl0' and 144-8" changeable letters and space plates the word ‘Crystal’ will be on top of sign in 12" Novelite letters the word ‘Crystal’ is to flash on and off the interchangeable letters are to burn all the time.”
“That the contract alleged and set out in the complaint was entered into and that the Pacific Power and Lig’ht Company substantially performed all of the provisions of that contract as required. In considering the contract, you will notice that there is nothing in the language of the contract which indicates how the sign is to be erected with reference to the front of the building — whether it is to be laid out along the face of the building or whether it is to extend across the face of the sidewalk, or down the sidewalk. It is not shown by the contract. So that is a question for you to determine, and you can determine it by the terms of the contract and if that does not satisfy your mind you can determine it or resort to circumstances surrounding the transaction, taking into consideration the purposes for which the sign was to be erected and the idea or thought that must have been in the mind of the parties at the time that the contract was entered into, and in that way determine what was the intention of the parties with reference to the fact that at the time they entered into the contract, and if you find from the contract and the evidence in support thereof that it was the duty of the Pacific Power*510 and Light Company under the terms of this contract to erect and equip this sign in a manner substantially perpendicular to the face of the building so that the building on the inside of the sidewalk would have attached to it a sign which would stand out lengthwise or in a northerly course across the sidewalk, and you find that the Pacific Power and Light Company have not done so, but have given it an angle or position which is not substantially in compliance with that required by the contract then you would have a right to find that they have not complied with the terms of the contract and have not performed their contract and in that event the defendants would not be liable to them until they had so installed the sign as required. ’ ’
The court further explained among other things that a slight or immaterial deviation was not sufficient to invalidate the contract. Counsel for plaintiff saved an exception to the instruction to the jury for the reason that the court referred to and based the instruction upon the second further and separate defense pleaded by the defendants, the objectionable portion of which pleading, as understood, is as follows:
“That under and by the terms of said agreement the said sign as contracted for was to be so placed by said company on the said wall of said picture show-house so that the same would hang directly over the walk in front of said picture show-house and on a straight line and parallel with the length of said picture show-house; that said sign so attempted to be delivered by said company, together with the brackets upon which the same was hung, had about a length or between twelve and thirteen feet; that when said company attempted to deliver said sign it placed and hung the same on the north wall of said house, at a point directly opposite said wires and cables as mentioned being so situated, it was impossible to permit the said sign to hang as agreed and stipulated and it was necessary, by reason of the situation of said*511 wires and cables that the said sign hang only in a position with one face against the wall of said house or protrude at an angle until the same came in contact with said wires and cables, thus permitting but one face of the said sign to be read by persons on the street, and it being impossible for persons at a distance from the show-house to see or read the sign * * ”
It is further averred in the answer that defendants . requested the company to install the sign so that it could be read by persons approaching it from either direction. It is the contention of plaintiff that the written contract does not include a requirement for the placing of the sign as desired by plaintiff.
"While no exception was saved to the testimony, the real objection to the instructions of the court, as the record is understood, is that the charge is based upon oral evidence as to the agreement which is not contained in the written contract. There is no claim that oral evidence was submitted to the jury contradicting or varying the terms of the written contract in any respect where that memorandum expressed the terms agreed upon. The writing being silent as to the manner in which the sign should be installed it was competent for the defendants to show, and for the jury to consider, that the details or specifications of the manner in which the sign should be installed were agreed upon between the parties to the contract although not embodied in the written memorandum.
The rule of evidence that all preliminary negotiations and agreements are to be deemed merged in the final settled instruments executed by the parties does not prevent a contract from being partly oral and partly evidenced in writing. The question of whether an entire contract was reduced to writing, or an independent collateral agreement was made, is one of
Mr. Wigmore treats of the subject at length in his work on Evidence. We quote in part:
“The most usual controversy arises in cases of partial integration, i. e., where a certain part of a transaction has been embodied in a single writing, but another part has been left in some other form. Here obviously the rule against disputing the terms of the document will be applicable to so much of the transaction as is so embodied, but not to the remainder. * *
“(1) Whether a particular subject of negotiation is embodied by the writing depends wholly upon the intent of the parties thereto. * *
“(2) This intent must be sought where always intent must be sought (ante, Sections 42, 1714, 1790), namely in the conduct and language of the parties and the surrownding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover”: 4 Wigmore on Ev., § 2430.
The rule is stated in 22 C. J., page 1144, Section 1531, thus:
“The parol evidence rule does not preclude the reception of parol evidence with reference to a matter evidenced by the writing, where such evidence relates to a matter in pais, or is of such a character that it*513 does not tend to vary or contradict the written instrument. Thus there is no objection to the admission of evidence which is offered not to contradict or vary the terms of a written agreement, but simply to explain how it is to be carried out. * * ”
See Salem Kings Products Co. v. Ramp, ante, p. 329 (196 P. 401" court="Or." date_filed="1921-03-22" href="https://app.midpage.ai/document/salem-kings-products-co-v-ramp-6907363?utm_source=webapp" opinion_id="6907363">196 Pac. 401, 409); Atlantic Terra Cotta Co. v. Masons’ Supply Co., 180 F. 332" court="6th Cir." date_filed="1910-07-13" href="https://app.midpage.ai/document/atlantic-terra-cotta-co-v-masons-supply-co-8775863?utm_source=webapp" opinion_id="8775863">180 Fed. 332 (103 C. C. A. 462); Kansas City etc. R. Co. v. Smithson, 113 Ark. 305" court="Ark." date_filed="1914-06-08" href="https://app.midpage.ai/document/kansas-city--memphis-railway-co-v-smithson-7807186?utm_source=webapp" opinion_id="7807186">113 Ark. 305 (158 S. W. 555, Ann. Cas. 1916C, 568); Shopper Pub. Co. v. Skat Co., 90 Conn. 317" court="Conn." date_filed="1916-04-19" href="https://app.midpage.ai/document/shopper-publishing-co-v-skat-co-3322768?utm_source=webapp" opinion_id="3322768">90 Conn. 317, (97 Atl. 317); Fountain v. Hagan Gas Engine etc. Co., 140 Ga. 70" court="Ga." date_filed="1913-05-16" href="https://app.midpage.ai/document/fountain-v-hagan-gas-engine--manufacturing-co-5579081?utm_source=webapp" opinion_id="5579081">140 Ga. 70 (78 S.E. 423" court="Ga." date_filed="1913-05-16" href="https://app.midpage.ai/document/bailey-v-freeman-5579083?utm_source=webapp" opinion_id="5579083">78 S. E. 423); Foote etc. Co. v. Southern Wood Preserving Co., 11 Ga. App. 164" court="Ga. Ct. App." date_filed="1912-05-22" href="https://app.midpage.ai/document/foote--davies-co-v-southern-wood-preserving-co-5605746?utm_source=webapp" opinion_id="5605746">11 Ga. App. 164 (74 S. E. 1037); Gardner v. Denison, 217 Mass. 492" court="Mass." date_filed="1914-05-20" href="https://app.midpage.ai/document/gardner-v-denison-6432687?utm_source=webapp" opinion_id="6432687">217 Mass. 492 (105 N. E. 359, 51 L. R. A. (N. S.) 1108); Willis v. Fernald, 33 N. J. L. 206; Smith Premier Typewriter Co. v. Rowan Hardware Co., 143 N.C. 97" court="N.C." date_filed="1906-11-13" href="https://app.midpage.ai/document/typewriter-co-v--hardware-co-3658807?utm_source=webapp" opinion_id="3658807">143 N. C. 97 (55 S. E. 417); Easton v. Woodbury, 71 S. C. 250 (50 S.E. 790" court="S.C." date_filed="1905-04-29" href="https://app.midpage.ai/document/easton-v-woodbury-3884858?utm_source=webapp" opinion_id="3884858">50 S. E. 790); Missouri etc. R. Co. v. Stark Grain Co., 103 Tex. 542" court="Tex." date_filed="1910-11-09" href="https://app.midpage.ai/document/missouri-kansas--texas-railway-co-v-stark-grain-co-3945234?utm_source=webapp" opinion_id="3945234">103 Tex. 542 (131 S. W. 410); Emerson v. Stratton, 107 Va. 303" court="Va." date_filed="1907-09-12" href="https://app.midpage.ai/document/emerson-v-stratton-6811620?utm_source=webapp" opinion_id="6811620">107 Va. 303 (58 S. E. 577); Crawford v. Workman, 64 W. Va. 10 (61 S. E. 319); Mann v. Paper Co., 41 N. B. 199 (5 Dom. L. R. 596, 11 East L. R. 81); McLean v. Crown Tailoring Co., 29 Ont. L. 455 (5 Ont. W. N. 217, 15 Dom. L. R. 353); Bulmer v. Brumwell, 13 Ont. App. 411.
The plaintiff has no reason to complain because the court allowed the jury to take into consideration oral evidence as to how it was agreed between the company and the defendants that the sign should be installed.
The defendants are not held to any strict rule as to how such signs are customarily erected. It does not appear, in so far as it is observed, that the agreement as shown by the evidence differed in any way
The judgment should be affirmed.
Dissenting Opinion
A jury trial within the meaning of the constitution consists only in the admission of proper evidence according to the pleadings as the parties have framed them, coupled with instructions apropos to such pleadings. "When either of these elements is wanting, the parties have not had the jury trial which the constitution guarantees to all suitors. Admittedly, the instructions mentioned do not conform to the evidence, there being no testimony to support them. In this there was plain and palpable error, a departure from 'one of the principal ingredients of the jury trial. The judgment should be reversed and a new trial ordered.
For these reasons I dissent from the opinion rendered by Mr. Justice Johns.