Phoenix Publishing Co. v. Riverside Clothing Co.

54 Minn. 205 | Minn. | 1893

Mitchell, J.

The rule forbidding the use of parol evidence to' affect a written instrument does not apply to a case where a part only of the dealings between the parties in respect to a particular subject-matter is reduced to writing, except as respects such part. It is always competent to prove by parol the existence of any separate oral agreement as to any matter on which the document is silent, and which is not inconsistent with its terms, if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. 1 Greenl. Ev. § 284a; Steph. Dig. Ev. art. 90; Domestic Sewing-Mach. Co. v. Anderson, 23 Minn. 57; Boynton Furnace Co. v. Clark, 42 Minn. 335, (44 N. W. Rep. 121;) Beyerstedt v. Winona Mill Co., 49 Minn. 1, (51 N. W. Rep. 619;) Routledge v. Worthington Co., 119 N. Y. 592, (23 N. E. Rep. 111.) This rule, which is elementary, disposes of the only point in the case. The order given by defendant did not purport to be a full and final statement of the whole transaction between the parties. In fact, in and of itself it was not a contract at all. No obligation was assumed or agreement expressed in it on the part of the plaintiff. Parol evidence would have to be resorted to at the very outset to prove a contract. Of course, when the order was accepted, there was a binding contract, and, in so far as its terms were expressed in the order, they could not be varied or contradicted by parol. But, even after acceptance, the order would not purport to be a complete statement of the whole contract. Parol evidence would still have to be resorted to to show what these proposed “sketches” were to be, and it was entirely competent to prove the existence of any oral agreement as to what they should be or contain as to any matter as to which the order was silent, and which was not inconsistent with its terms. Such, we think, was the agreement that defendant should be the only one in the same line of business in that neighborhood whose advertisements should be given space in the proposed publication.

Note. See Burke v. Dulaney, 158 U. S. 228. [Reporter. (Opinion published 55 N. W. Rep. 913.)

Judgment affirmed.