Mathieson Alkali Works v. Virginia Banner Coal Corp.

Sims, P.,

dissenting:

I find myself unable to concur in the conclusion of the majority opinion, that the last decree of reference, under review, does not decide any principle of the *108cause; or the conclusion that the cause should be remanded for extrinsic evidence, if offered, to enable the court to construe the written contract involved in this suit.

The decree expressly provides that the .commissioner “shall take proof on the issues raised herein and shall also consider any other proofs offered or filed herein by either of said parties in support of their respective claims as set out in the pleadings herein * * and shall state and settle an account of said claims between said parties.” The chief issue in the cause is the proper construction of clause 1 of the con-, tract, of date September 1, 1917; and upon that issue the pleadings clearly and distinctly presented to the court below for decision the question of whether evidence, alleged' by the appellees in their pleadings, of the prior negotiations between the parties leading up to the contract, tending to show an intention on the part of the parties different from that expressed in the contract, is admissible to alter or vary the plain meaning of the contract as expressed by its own unambiguous words. When the decree of reference directed the commissioner to admit “any * * proofs offered or filed * * by either of said parties in support of their respective claims as set out in the pleadings herein,” the effect of this was to direct the commissioner to admit the character of proof just mentioned and to base his conclusions thereon, and it decided that such evidence was admissible to show the meaning of the contract, and thus decided upon what evidence the rights of the parties must be finally worked out in the cause; and so settled the principles of the cause to that extent. Reed v. Cline’s Heirs, 9 Gratt. (50 Va.) 136, 138; Wise v. Lamb, Idem. 294, 309; *109Lancaster v. Lancaster, 86 Va. 201, 204, 9 S. E. 988; Johnson v. Mundy, 123 Va. 730, 97 S. E. 564.

As said in Reed v. Cline’s Heirs: “The decree directing the issues must be understood as settling the principles of the cause to this extent: If the jury should find the issues favorably to the complainants, they should have the relief prayed for, otherwise it would be an idle waste of time and costs to try the issues at all. Regarding the decree of the court in this light and holding that it settled the principles of the cause erroneously * * I am of opinion that this court may take cognizance of the appeal.”

As said in Lancaster v. Lancaster: “It is difficult, if not impossible, to define exactly what is meant by adjudicating the principles of the cause in such a way as to fit every case, but it must mean that the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case in order to ascertain the relative rights of the parties with regard to the subject matter of the suit.”

As said in Johnson v. Mundy: “The order in the instant ease determined the rule of evidence by which the rights of the parties are to be finally worked out, which is the same thing, in substance, as determining the rule by which the rights of the parties are to be finally worked out.”

I think that the decree was plainly wrong in deciding that the parol evidence aforesaid is admissible for the purpose- aforesaid. Under the settled rule on the subject, whatever passed between the parties in the negotiations leading up to the contract was merged in the written contract.

There are, it is true, as stated in the majority opinion, *110exceptions to the parol evidence rule, and questions touching that rule upon which the cases are in conflict. But the character of the facts sought to be shown by the appellees by the extrinsic evidence appears from, the pleadings of the appellees, and it is apparent from such pleadings that such evidence is inadmissible for the purpose of varying or altering the plain meaning of the contract as it is written, under the rules on the subject which may be considered as settled in this jurisdiction.

Nothing need be added to what is said above with respect to the extrinsic evidence of the negotiations prior to the contract.

With respect to the evidence of the occurrences which arose subsequently to the execution of the contract, this only need be said: They are shown by the pleadings, as aforesaid, and as appears therefrom, they were not of such character as to make it appear that there is any ambiguity in the terms of the written contract.

I think, therefore, the court below should have sustained the exceptions to the answer and have construed the contract before referring the cause to the commissioner, so as to have given the commissioner and the parties the benefit of such decision, as the basis from which to determine the other issues in the cause, and thus avoid very great delay and needless expense to the parties in the introduction and consideration of a great mass of wholly irrelevant evidence. 2 Rob. (Old) Pr., p. 359; 2 Barton’s Chy. Pr., sec. 189, pp. 679-680, citing a number of Virginia cases; 4 Minor’s Inst., Pt. 2 (2d ed.), p. 1357, citing 2 Dan. Ch. Pr. 997, Allen v. Smith, 1 Leigh (28 Va.) 252, and Corbin v. Mills’ Ex’rs, 19 Gratt. (60 Va.) 438.

The circumstance that the appellant in its pleadings asks for a reference upon other issues as to other *111matters, and that the case is such that there will have to be a reference to the commissioner upon other issues, cannot, as it seems to me, justify, in the slightest degree, the action of the court in referring the cause to the commissioner to take and consider, and decide and report upon, irrelevant evidence, as aforesaid, with its needless consequences of delay and expense aforesaid. The decision and report of the commissioner upon such other matters could not be aided, and would certainly be needlessly complicated and delayed, by the reference in question.

In 2 Rob. (Old) Pr., p. 359, supra, this is said: “In Virginia nothing in chancery practice has been productive of so much mischief as orders of accounts unwisely made. Cases have frequently arisen in which if a particular point were determined in one way, an account would be proper; if determined the other way, an account would not be required. In such eases the court has often directed an account before it decided the point upon the decision of which the propriety of taking the account depends. After much time consumed and much money expended in obtaining the account, there would be a decree in the cause ascertaining that the account which had been ordered was wholly unnecessary. The Court of Appeals has discountenanced such a practice.” Citing Allen v. Smith, 1 Leigh (28 Va.) 252.

To the same effect see the citations from 2 Barton’s Chy. Pr. and 4 Minor’s Inst., supra, citing numerous Virginia cases.

I think that this court can perform no more important duty and none which would strike a more effective blow at “the law’s delays,” nor one which would be more far reaching in its beneficial effect upon the vital need of a more speedy termination of litigation in *112chancery cases, than to vitalize, as far as practical, the aforesaid long-standing condemnation of the practice mentioned; and, certainly in such a case as that before us, it should not, as I think, have our approval.

Campbell, J., concurs in the dissenting opinion.