The first assignment of error is that the court erred in admitting parol evidence to explain the paper given July 10, 1912, by showing that it did not embrace the Kentucky contract.
It is well settled that a simple receipt is an admission only, and not a contract, and, like any other admission, may be contradicted or explained by parol evidence (4 Wigmore on Evidence, sec. 2432; American Bridge Co. v. Murphy, 13 Kan. 35;Brooks v. White, 43 Mass. [2 Metc.] 283, 37 Am. Dec. 95), but it is equally well settled that if a contract is incorporated in a receipt, the receipt may be varied, but the contract cannot (Jones on Evidence [2d Ed.], sec. 492 [503]), and in discussing this subject Mr. Wigmore says (4 Wigmore on Evidence, sec. 2432):
"Which of these characters a given document possesses must of course depend on the particular case; but it is well understood that a document which is a receipt may, in some instances, be indisputable as being in effect a release or contract."
The evidence in this case is directly contradictory: that on behalf of the plaintiff tending to show that the only matter considered in the settlement at the time the paper was signed, was the amount due on the contract for drilling the well east of Bartlesville; that on behalf of the defendant tending to show that all matters, including the Kentucky contract, were embraced. This raises the question whether the words "in full for all demands to date" take this instrument out of the class of a simple receipt, and invest it with the character of a contract or release. If the instrument was of the latter class, it was *Page 571 error to allow the evidence complained of, in the absence of an allegation of fraud or mistake in the pleadings.
In Brooks v. White, 43 Mass. (2 Metc.) 283, 37 Am. Dec. 95, a question very like the one now under consideration was presented, and the court says:
"The court left it to the jury to find whether the receipt was intended as a discharge to Downing only, or to all of the promisors; and the plaintiffs now insist that this was erroneous, and that it was not competent for the jury to pass upon the intent of the parties as to the effect of this agreement. As it seems to us, this objection cannot avail the plaintiff. It was not submitting to them the construction of a written instrument. Their first inquiry was whether the plaintiffs had given a discharge of this demand. If that discharge was in full of all demands, as the evidence offered tended to show, it was competent to inquire what demands were the subject-matter of the adjustment, and were understood by the parties to be embraced in the receipt; whether the individual liabilities of Downing only, or the liabilities of the late firm of White Co., of which firm Downing was a member."
In Simmons v. Johnson, 3 B. Ad. 175, which was an action of covenant, the defendant pleaded a release, which recited that various disputes were existing between the parties, and that actions had been pending, but that it had been agreed between them that, in order to put an end thereto, the defendant should pay the plaintiff 150 pounds, and that each should release the other from all actions, causes of action, and claims brought by him, or which he had against the other, and the instrument then proceeded to release all claims, demands, and actions whatsoever. It was held that parol evidence was admissible to show that the claim sued on was not intended to be included in the release. This case is cited with approval *Page 572 in Fire Insurance Ass'n v. Wickham, 141 U.S. 564, 581, 12 Sup. Ct. 84, 35 L. Ed. 860. In that case, Wickham held insurance policies on a vessel, which protected him, not only for injury caused by fire, but also for the expense of raising the vessel. While these policies were in force the vessel took fire and sank, and was damaged some $15,000 by the fire, and the cost of raising it amounted to some $15,000 more. A settlement was had between the insured and the insurance company, and receipts taken, which provided:
"In consideration thereof said company is hereby discharged forever from all further claims by reason of said fire, loss and damage, and said policy * * * is hereby assigned, with all claim thereunder, to said company, and said policy is hereby canceled in full and surrendered to said company."
After this settlement and after this receipt was given, an action was brought on the policy to recover the amount due for raising the vessel, and the question was whether parol evidence was admissible to show that the receipt was intended to cover only the loss by fire, and the Supreme Court of the. United States held that parol evidence was admissible Plaintiff in error has cited cases apparently in conflict with the rule laid down in the above cases; but, in the absence of any decision of our own court, we are of the opinion that those above cited state the true rule, and therefore there was no error in receiving the evidence objected to.
The case of McNinch v. Northwest Thresher Co., 23 Okla. 386,100 P. 524, 138 Am. St. Rep. 803, cited by plaintiff in error, has no bearing on the question now under consideration. The question in that case was whether the terms of a promissory note could be altered *Page 573 or explained by parol, in the absence of an allegation of fraud or mistake, and the court does not consider the question of the effect of a receipt at all.
The second assignment of error relates to the exclusion of certain evidence offered by the plaintiff in error, which offer was as follows:
"The defendant offers to prove by the witness, Barney Robinson, that the teamster, Holloway, notified him, Robertson, that he, Holloway, had a bill against this stuff, and that he would attach it in order to prevent it from being shipped out; that Pat Welsh told him the same thing as to a claim Welsh said he had against Vandeventer; that Mr. Gabel told him that Mr. Breen had a bill of $100 which he would attach, and that he would attach the property in order to prevent it being shipped out, and Gabel notified Mr. Robertson of that fact.
"We also offer to prove that two other parties had given him notice of the same thing; and we offer also to prove by the witness Gabel that he is qualified — that he is familiar with the price of lumber in this vicinity at that time, such lumber as is used in the construction of drilling rigs; that at the request of Mr. Robertson he made an estimate of the amount of lumber which would be required to reconstruct the drilling rig in a workmanlike manner, and that he informed Mr. Robertson that the reasonable cost of the necessary lumber to reconstruct the rig would be in the neighborhood of $400."
Evidence had already been admitted, showing the attachment levied on the plaintiff's rig, and garnishment which had been served on Robertson. In view of this evidence, assuming but not deciding that the evidence offered was admissible, we think the refusal to admit was harmless error. Rev. Laws 1910, sec. 6005;Nowlin v. Melvin, 47 Okla. 57, 147 P. 307. *Page 574
The third assignment of error is that the judgment should have been for the defendant. The argument in plaintiff in error's brief on this subject is founded entirely upon the effect of the receipt, and is answered by what we have said on the first assignment of error.
The fourth assignment of error complains of the giving of instructions 5 and 7. The complaint of these instructions is: First, that the court left it to the jury to say whether the Kentucky contract was embraced in the settlement and receipt. This is disposed of by our disposition of the first assignment of error. If that is correct, the charge of the trial court was entirely fair and proper. And, second, that there was no evidence sufficient to go to the jury of a refusal to perform by the plaintiff in error. In our opinion, the evidence of the plaintiff below was sufficient to take this question to the jury, and there was no error in the instruction.
The remaining assignment of error is that the court misdirected the jury on the question of damages. The vexed question of when profits can be allowed as damages does not arise in this case, for the contract provided that Robertson should pay all the expenses of placing the plant on the cars at Bartlesville, and of transporting it to Kentucky, and all expenses of unloading and erecting it at the point of drilling operations there. At the completion of the work he was to pay all expenses of returning the plant to Bartlesville, including the traveling expenses of the plaintiff below in going and coming from Kentucky, and was to pay the plaintiff below $1,000 for the use of the plant and his services for 60 days. Under this contract there was no question of "profits" in the sense that word is used in regard to recovering damages for their loss. The plaintiff below was to be at *Page 575 no expense; there was no uncertainty as to what he would make, for the contract fixed that at $1,000.
The case of Rogers v. Oklahoma City, 45 Okla. 269,145 P. 357, is not in conflict with what we have said. That case holds:
"Where a party furnishes meals in accordance with the terms of his contract, and is prevented by the city from further performing his contract, the measure of damages is the difference between the cost of production and the contract price from the date of the breach to the expiration of the period covered by the contract."
In the case at bar, there was no "cost of production," for Robertson was to pay all the expenses. In our opinion there was no error in this instruction.
We therefore recommend that the judgment be affirmed.
By the Court: It is so ordered.