129 P. 365 | Utah | 1912
(after stating the facts as above).
The parol evidence tended to change the transaction from an absolute to a conditional sale. The admission of this testimony was therefore error. It violated1 and was in derogation of the well-established and universally recognized rule that a valid written instrument cannot be abridged, enlarged, varied, or contradicted by parol evidence. Page, in his excellent work on Contracts, section 1189, says:
“If parties to a contract have reduced it to writing, they must intend such writing to he the repository of their common intention. It merges all prior and contemporaneous negotiations. Accordingly a contract in writing, complete on its- face, cannot he contradicted hy extrinsic evidence, nor can prior or contemporaneous parol agreements he used to contradict the written contract, so as to substitute for the intention therein expressed, that expressed in such oral agreements." (Italics ours.)
And in section 1191 the 'author says:
“In an action on a written contract, complete in itself, the validity of which is conceded, the parties are not permitted to show that their prior or contemporaneous oral agreements were not all*154 reduced to writing, but remain as oral contracts in full force and effect between tbe parties. This rule applies as well where tbe intention of tbe parties is completely embodied in two written contracts instead of one.”
And again in section 1192 tbe author says:
“Extrinsic evidence is inadmissible to contradict tbe intention of tbe parties as expressed in a written contract by showing a prior or contemporaneous oral agreement contrary to tbe written agreement. Thus extrinsic evidence is inadmissible to show . . . that, under a written contract of sale, title was really reserved by the vendor.”
The following are a few of the many authorities that illustrate and declare this doctrine: 17 Cyc. 596-598; Cook v. Nat. Bank, 90 Mich. 214, 51 N. W. 206; Engelhorn v. Reitlinger et al., 122 N. Y. 76, 25 N. E. 297, 9 L. R. A. 548; Harrison v. McCormick, 89 Cal. 327, 26 Pac. 830, 23 Am. St. Rep. 469; R. M. Davis Photo Stock Co. v. Photo Jewelry Mfg. Co., 47 Colo. 68, 104 Pac. 389; 19 Ann. Cas. 540; Groome v. Ogden City, 10 Utah, 54, 37 Pac. 90; McCornick v. Levy, 37 Utah, 134, 106 Pac. 660; Barry-Wehmiller Mach. Co. v. Thompson, 83 Ark. 283, 104 S. W. 137; Housekeeper Pub. Co. v. Swift, 97 Fed. 295, 38 C. C. A. 187, citing many cases.
Appellants offered in evidence, as tending to prove title in themselves to the property, the complaint, answer, and decision of the court in the cause hereinbefore referred to, in which the respondents were enjoined from removing or destroying any of the property in controversy. The decision of the court in that cause, which was filed but a few d!a.ys before it was offered in evidence, recited, among other things, “that neither of said defendants, Larsen or Vance (plaintiffs and respondents herein), had any title or right of possession to said property.” The judgment was not pleaded in abatement of, nor as a bar to, the action. In fact, no reference whatever was made to it in either the complaint or answer. Objections were made to the admission in evidence of the judgment roll or any part thereof in that cause on the
Comp. Laws 1901, sec. 2962, so far as material here, provides that “the defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof . . . (3) that there is another action pending between the same parties for the same cause.” Section 2966' provides that, “when any matters enumerated in section 2962 do not appear upon the face of the complaint, the objection may be taken by answer.” Under the foregoing provisions of the statute, the pendency of another suit between the same parties or their privies and involving the same subject-matter, when not appearing on the face of the complaint to be available to the party seeking to invoke it as an abatement to the action, must be pleaded in the answer. Note 22 to section 1049, 3 Kerr’s Cyc. Codes of Cal., contains the following dear and succinct statement of what we think is the correct rule:
“Where time for appeal has not expired, judgment is ineffectual as evidence in plea of former adjudication, and pendency of former action may he pleaded in abatement until judgment becomes final, when supplemental answer averring proper facts in bar of action would be in order, and proceedings in action are admissible in proof of such plea in abatement”—
citing Harris v. Barnhardt, supra. (See, also, 1 Ency. PI. & Pr. 838, and volume 21, same work, 47.)
We do not wish to be understood as holding that a judgment in a case which, under our statute, is still pending, under some circumstances, may not be admissible in evidence to prove some facts therein adjudicated. Upon that point we express no opinion. What we do hold is that a judgment,
The judgment is reversed, with directions to the lower ■court to grant a new trial and to permit appellants by supplemental answer to plead the judgment rendered in the Tormer suit as a bar to this action, should they be so advised. Costs of this appeal to be taxed against respondents.