This case was originally assigned to me, and I prepared an opinion which met with the approval of only one of my associates. I am still convinced that it constitutes a correct decision of the questions presented and that the majority opinion does not correctly determine the cause. For this reason I feel that I may be pardoned for thus presenting my views. This action was instituted to recover a balance alleged to be due on a contract for the sale of apples. Respondent alleged that in 1919 he sold and delivered to appellant his crop of apples at an agreed price, and that there was a balance due thereon of $7,766.04. Appellant answered the complaint, and denied that it had purchased any apples from respondent, but alleged affirmatively that it made and entered into a contract, in writing, with respondent, wherein and whereby it agreed to handle respondent's entire crop of apples on consignment; and that it so handled the entire crop of apples, rendered an account thereof to respondent, and paid over to him all that was due. The written contract was made a part of the answer. *Page 350
Respondent testified that two officers of appellant, Campbell and Martin, came to his place to see him in May, 1919, and that "They . . . . wanted to talk apple business with me, and wanted to know if I had contracted my crop, and I told them that I had not, and they said they would like to have the privilege of handling it, and wanted to know if I would contract the crop and ship it on consignment to the Earl Fruit Company, and I said that I did not care to ship any of my crop on consignment, as I had had about all of that kind of experience that I cared for, and that I intended to sell my apple crop f. o. b. the cars at Buhl, and that I believed I could do so; and they then tried to show me that I was making a mistake by doing so and argued the question along that line and tried to get me to consign my apples to the Earl Fruit Company, but I still held out that I would not consign my apples to them. Finally, Mr. Martin made me a proposition, and his proposition was that the Earl Fruit Company would make a price for the apples at picking time — a price on the market, free on board cars at Buhl, Idaho, and that I would have the privilege of rejectment or acceptance of their price at picking time when the apples would be ready for loading on cars. Mr. Martin also said that in making that price or offer, that from their price I was to take ten cents a box from their price — the price they offered me for the apples at picking time, free on board cars at Buhl, and that I would have then the absolute price that I would get for my apples on board the cars at Buhl, and that I would have the privilege of either accepting or rejecting their price for the apples at that time."
At this point, appellant objected to any testimony "which would attempt to vary the terms of a written contract by parol"; and urged that "it was not the best evidence." The court announced that "if this preceded the contract and afterwards was embodied in it, the objection is well taken." Respondent then continued and testified without objection that he agreed to the proposition they made to him; that it was agreed that Campbell should draw up the contract according to their understanding; that thereafter Campbell *Page 351 brought the contract to him "about dark" when respondent could not read it; that Campbell assured him that the contract was prepared in accordance with their agreement; that he thereupon signed it, but that he said to Campbell:
" . . . . If the contract is according to our agreement, it will stand, and if it is not, I will let you know, and I will be over and see you."
Respondent further testified, without objection, as follows:
"I went to Twin Falls and went into the office where Mr. Campbell was, and pulled out the contract, and I says, 'This contract is not in accordance with the conversation and agreement we had in the orchard — it does not have Mr. Martin's proposition in it at all, that he made to me, with the exception of the money part of it.' . . . . Mr. Martin had agreed to let me have money to finance the picking of the apples, also, if I need any money at thinning time, he would advance me some then."
An objection was here made that the contract was the best evidence of its contents, and also to any testimony relating "to the circumstances or conversation leading up to the contract." The objection was sustained, presumably because the contract was the best evidence, as the witness was then testifying to matters subsequent to the signing of the contract. After some discussion between counsel, appellant stated:
"I would like to have the record show the questions and answers relating to a subsequent parol contract, or any attempt to vary or modify the written contract, to go in under the objection of defendant."
Respondent then testified, without further objection, as follows:
"I came to see Mr. Campbell in Twin Falls. I came into his office. I pulled out the contract and showed him the contract, and told him it was not in accordance with our agreement, that the contract which he had drawn up was not in accordance with our talk and did not contain Mr. Martin's proposition; and he says, 'Why, we never put those *Page 352 things in a contract,' he says, 'but the Earl Fruit Company will surely carry out their contract under their agreement as we have talked it over, and it will be all right."
Without objection respondent was permitted to testify further to the same conversation, as follows:
"I told Mr. Campbell that this contract, I says, 'This contract that you brought out there is only a one-sided contract that you have got made up here, and you didn't combine in this contract the oral agreement that we made there in the orchard, and that we agreed should be in this contract,' and he says, 'Well, no, but we will carry that out just exactly as we agreed to and you need not have any fear or doubt about that.' "
Testimony on behalf of respondent then showed that some money was advanced by appellant, and, when the apples matured, Campbell made respondent a price for the "King Davids," a definite price per box for each of certain grades, f. o. b. Buhl; that after the "King Davids" were delivered, respondent asked Campbell for prices on the different grades of "Jonathans," and that he was given a price on such apples, f. o. b. Buhl; that thereafter, Campbell gave him a price on the "Delicious" variety, f. o. b. Buhl; that, for the sum per box offered, he sold and delivered all his apples to appellant, except one car of mixed varieties; and that appellant not being able to make a price on the mixed varieties, such car was delivered on consignment.
The evidence on behalf of appellant consisted of a denial of practically all of the conversations testified to by respondent relating to a sale of the apples. Appellant claimed that it took all of respondent's apples on consignment, sold them, paid the freight, auction, brokerage, inspection, storage and other charges, and paid to respondent all of the proceeds of the sale of the apples that remained. Appellant explained that it received orders for apples of certain varieties and grades, and that it did not make respondent any price on his apples at any time, but that it gave him an opportunity to fill such orders; that the apples did not come up to the grades; and that they were necessarily handled on consignment. *Page 353 Appellant moved to strike all the respondent's testimony from the files "with the exception of the preliminary negotiations on the written contract," on the ground that it was an attempt to vary the terms of a written contract, which motion was denied.
I have thought it necessary, because of the somewhat unusual nature of the case and the grounds upon which it is sought to reverse the judgment, to quote some of the material parts of the testimony, together with some of the objections made by appellant. Appellant moved for a nonsuit at the close of the plaintiff's case, for a directed verdict at the close of the evidence, and for a new trial. The appeal is from the judgment and from the order overruling motion for new trial, and appellant assigns as error the refusal of the court to grant said motions, the insufficiency of the evidence to sustain the verdict and the admission of "certain testimony of plaintiff . . . relating to negotiations, conversations and transactions prior to the entering into of the written contract." The foregoing specifications are treated by appellant under two heads: The first relates to the admission of certain evidence, and the second to the insufficiency of the evidence. Because of the position taken by the majority, it should be stated thatnone of the specifications of error question either thesufficiency of the complaint, or that the action is not basedupon the written contract, or that there is no allegation of amodification of the written contract, or of fraud or mistake,or that no reformation is sought.
Respondent was permitted, without timely objection, to testify to the negotiations preceding the execution of the contract, and to detail the terms and conditions which it was agreed should be embodied in the contract. Appellant claims that this was error, in that all prior negotiations were embodied in the contract, and that parol evidence was not admissible to vary or modify its terms. Respondent contends that such testimony was admissible, not as tending to vary or change the terms of the written contract, but to establish the terms of an agreement that was not embodied *Page 354 in the written contract; it being respondent's position that appellant had failed to embody their agreement in the contract that was signed; that when he later found this out, he went to appellant and that they then and there agreed that the terms and conditions agreed upon prior to the signing of the contract would be carried out; and that in proving the terms of the subsequent agreement, it was necessary to show what was agreed upon before the written contract was signed.
Appellant contends that the contract between the parties was reduced to writing; that it was complete within itself; and that conversations or negotiations occurring prior to the making of the contract and which vary or contradict any of its terms are not, with certain exceptions, admissible in evidence. This is a general rule and has been upheld by this court. (Gardiner v. Gardiner, 36 Idaho 664, 214 Pac. 219; Jarrett v.Prosser, 23 Ida. 382, 130 P. 376; Tyson v. Neill, 8 Idaho 603,70 P. 790; First National Bank v. Bews, 5 Idaho 678,51 Pac. 777; Stein v. Fogarty, 4 Idaho 702, 43 P. 681.) In saying that such evidence is not admissible, I mean that it will not be admitted when proper and timely objection is made. In the case at bar, objection was not made to the admission of testimony by respondent as to the terms and conditions which it was agreed should be embodied in the contract to be signed, until after such testimony had been given, and respondent, in response to questions of his own as well as appellant's counsel, both on cross-examination and redirect examination, in the absence of any objection whatever, fully testified to all such prior negotiations and agreements. The motion to strike, heretofore referred to, expressly excepted from its contents testimony of "the preliminary negotiations on the written contract." Without determining, therefore, whether the court properly admitted the evidence relating to such prior negotiations in order to permit respondent to show the exact terms of the oral agreement respondent claims was entered into after the signing of the written contract, I am of the opinion that appellant, not having made timely objection, cannot now be heard to complain *Page 355 of the admission of such evidence. (Walling v. Walling, 36 Idaho 710,214 P. 218; State v. Baker, 28 Idaho 727,156 P. 103; Trask v. Boise King Placers Co.,26 Idaho 290, 142 P. 1073.)
The majority opinion, in effect, holds that the evidence relating to preliminary negotiations, even though unobjected to, was inadmissible, and that such evidence was, after it had been admitted, ineffectual to vary the written contract. This seems to be the rule in Massachusetts. (Butterick PublishingCo. v. Fisher, 203 Mass. 122, 133 Am. St. 283, 89 N.E. 189.) I am not ready to adopt such a rule until the question is properly presented. It was not mentioned in the briefs nor on either of two oral arguments, and is not necessary to a decision of this cause. But disregarding the testimony of respondent with respect to the negotiations preliminary to entering into the written contract, there was sufficient evidence that the parties, after they had signed the contract, orally agreed to disregard the consignment agreement and that appellant would purchase and respondent would sell his crop of apples. This they had a right to do. To corroborate the contention that this was done, there is considerable competent evidence that thereafter appellant quoted to respondent prices for his apples and that respondent delivered his apples in response to offers of appellant to purchase them at prices quoted.
Appellant also contends that because of the insufficiency of the evidence, his motion for a nonsuit renewed at the close of all the evidence, his motion for a directed verdict and his motion for a new trial should have been sustained, the alleged insufficiency of the evidence having been properly specified in each motion. Respondent, by his evidence, sought to establish a contract of sale. Appellant denied the existence of any contract of sale and sought to establish a consignment contract. The evidence of the respective parties supported their contentions. The court submitted these two contradictory contentions to the jury under instructions with respect to which no question was raised. The court and the jury saw the witnesses and heard them testify, and the *Page 356 jury evidently believed the evidence submitted by respondent, for it could not have found a verdict for him on any other hypothesis than that appellant had contracted to buy his apples. And while there may be doubt as to the existence of some of the things about which respondent testified, this court is not in a position to pass upon the credibility of the witnesses. Our province, in considering this assignment is merely to determine if there is substantial evidence to sustain respondent's theory upon which the verdict is based. In overruling appellant's motion, it is evident that the trial court was of the opinion that the evidence was sufficient, and that the verdict should not be set aside upon any of the grounds included in the motions. From the careful examination I have given the record, I am satisfied that there is substantial evidence to sustain the verdict of the jury. On the ground, therefore, of both reason and precedent, this court should not disturb the judgment.