Miller v. Weaver

Mr. Justice Burnett

delivered the following dissenting opinion.

1. In substance, the plaintiffs allege that about November 1, 1912, the defendant executed and delivered *602to them an agreement in writing to the -effect that he would pay them $220 on demand if they would procure for him a loan of $5,500 for five years to be secured by a first mortgage upon his land, and that, if upon .examination of title to the realty it was found to be unsatisfactory, or if for any other reason the defendant was unable or unwilling to consummate the loan, he would pay plaintiffs the stipulated fee. They further aver performance of the things to be done by them under the contract so far as they could be accomplished but for the refusal of the defendant to do his part, and demand judgment for $220. The answer “denies each and every material allegation in said complaint contained, except admits the signing of the instrument attached to and made a part of plaintiffs’ complaint.” The defendant’s pleading then contains this affirmative statement:

“Defendant alleges that the instrument in plaintiffs’ complaint mentioned, designated a contract, was signed by defendant in pursuance of negotiations then and there had between them, whereby defendant applied to plaintiffs for a loan of $5,500, offering as security therefor his farm of about 198 acres situated near Elgin, Union County, Oregon, upon which a mortgage obtained in favor of one H. Towner, and without the release of which defendant was unable to give plaintiffs first mortgage security.
“That thereupon.the parties hereto agreed defendant should write said H. Towner and ascertain if he would consent to release his mortgage, and defendant signed said instrument in pursuance of an agreement then and there had between them that the same was to become effective conditioned upon consent as aforesaid being obtained from said H. Towner; otherwise to be and remain void and of no effect.
“That immediately thereafter defendant communicated with said H. Towner, who refused to release his *603mortgage as aforesaid, all of which defendant immediately communicated to plaintiffs. ’ ’

A general demurrer to the new matter in the answer was overruled, and the reply traversed it. A jury trial resulted in a verdict and judgment for the defendant, from which the plaintiffs appeal.

It will be noted that the defendant says he signed the instrument upon which the plaintiffs base their action “in pursuance of an agreement then and there had between them that the same was to become effective conditioned upon consent as aforesaid being obtained from said H. Towner; otherwise to be and remain void and of no effect. ’ ’ This new matter does not question the delivery of the instrument. It is an attempt to ingraft upon it a conditional defeasance. The Standard Dictionary defines the word “pursuance” as:

“The act of pursuing; a following after or following out; prosecution; usually in the phrase ‘in pursuance of.’ ”

As applicable to the instant case, it refers to something prior to or concurrent with the execution of the document in question. According to the answer, this proposed defeasance was agreed upon before the signing of the contract upon which the plaintiffs declare. The writing is plain and explicit. There are no ambiguities in the instrument, either apparent or latent. In Ruckman v. Imbler Lumber Co., 42 Or. 231 (70 Pac. 811), the parties had executed a written memorial of their stipulation, and afterward, in defense of an action at law upon the same, the defendant resisted the plaintiff’s demand by alleging a contemporaneous parol agreement that the latter would discharge certain liens on the property involved. Mr. Chief Justice Moore, writing the opinion, said:

*604“The rule is universal that, as between the parties and their representatives and successors in interest, except where an alleged mistake is controverted by the pleadings, or in case the validity of the contract is the fact in dispute, parol' contemporaneous evidence is inadmissible to vary or contradict the terms of a written agreement. * # Plaintiff having never stipulated to discharge the liens upon the engine and boiler, there was no ambiguity in the agreement quoted, and the averment in the answer that there was a parol agreement to the contrary was demurrable, and, though issue was joined thereon, it could not be established by parol testimony, and no error was committed in refusing to permit the witness to answer the question propounded to him.”

On the demurrer to the' answer in this case the precedent just quoted is controlling; for it is manifest from the language of the plea that it is an attempt to incorporate into the contract an additional stipulation contrary to the terms thereof. It is not a case where part of the agreement is in writing and part in parol. In the American Contract Co. v. Bullen Bridge Co., 29 Or. 549 (46 Pac. 138), Mr. Chief Justice Moore quotes with approval the following language from West v. Kelly’s Exrs., 19 Ala. 353 (54 Am. Dec. 192):

“If the instrument is perfect and complete — that is, if it contains the entire contract — then the rule is inflexible that parol evidence cannot be received to add another term to the written instrument, or to change its legal effect. * * But, if it be apparent that the instrument in writing contains but a part of the agreement entered into by the parties, then parol proof may be received to prove the entire contract; otherwise the contract could not be brought before the court. * * But the parts of the agreement proposed to be proved .by parol must not be inconsistent with or repugnant to the intention of the parties, as shown by the written instrument; for, to receive parol proof of a part *605not reduced to writing, which is directly repugnant to the intention of the parties, as expressed in the written instrument, would at once annul the rule that parol evidence cannot be received to contradict or vary the terms of a written agreement.”

As throwing light on the question in the instant case, we quote from the testimony. While the defendant was on the stand as witness on his own behalf counsel for plaintiff asked him- this question:

“Mr. Weaver, was that agreement you mention that you would borrow the money from Mr. Miller if Mr. Towner would take a second mortgage, was that in writing?
“A. No, sir. I did not sign this agreement until Mr. Miller agreed not to have this in effect unless Mr. Towner did agree to it.

The law is thus stated in Section 713, L. O. L.:

“When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection of the writing is put in issue by the pleadings; (2) Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in Section 717, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud.”

We remember that this is an action at law. The defendant does not attempt by cross-bill in equity or otherwise to allege a mistake or imperfection in the writing. On the contrary, he explicitly avows the signing of the instrument involved. Neither does he aver any act of fraud on the part of the plaintiffs by which *606he was induced to execute the stipulation. In Portland National Bank v. Scott, 20 Or. 421 (26 Pac. 276), it was held that in an action upon promissory notes, where no illegality or fraud is charged,' it is not competent to allege or prove a contemporaneous parol agreement for the purpose of changing, varying or in any manner altering the legal effect of such notes. The defendant there essayed to escape liability by pleading an oral contract said to have been entered into at the time of the execution of the notes between the plaintiff and the defendant to the effect that the former should look to a certain railway company for payment; it having received the entire consideration upon which the notes were made. In Hindman v. Edgar, 24 Or. 581 (17 Pac. 862), which was an action to recover upon a promissory note and for money due upon a written lease, the defendant resisted the claim on the ground that at the time of executing the lease the parties made a verbal contract to the effect that, if the defendant had certain goods on hand at the expiration of the term, the plaintiff would take them back at an agreed price. The court held that this was not admissible, and that it was error to instruct the jury that the terms of the written contract could be affected or varied by a contemporaneous verbal agreement between the parties. In Wilson v. Wilson, 26 Or. 251 (38 Pac. 185), Mr. Justice Wolverton wrote to the effect that, where a promissory note was given for a definite sum and made payable on a day certain, it cannot be shown by verbal testimony that it was intended merely as a memorandum, and was not to be paid until the amount thereof could be realized out of a certain business venture. In Edgar v. Golden, 36 Or. 448 (60 Pac. 2), a suit to foreclose a mortgage, it was urged in defense that the moneys secured were *607not to become due nor the mortgage foreclosed until it had been established in an appropriate suit or proceeding that the plaintiff had good and unimpeachable title to the premises. Mr. Justice Wolverton reviewed the authorities, and said:

‘ ‘ The mortgage must be presumed to contain all the terms of the contract entered into at the time of its execution, and we must look to it and the notes copied therein to determine the time of the payment, and thus ascertain when the mortgage is subject to foreclosure. The parol agreement, if any, made and entered into prior to or at the time of the execution of such mortgage, cannot be relied upon or used to contradict or vary the terms of such notes and mortgage for the purpose of ascertaining the date of their payment or the time within which such mortgage is subject to foreclosure. So we hold that the evidence offered was incompetent for thejpurposes for which it was intended; that the notes were due and the mortgage enforceable at the time of the commencement of the suit; and that such parol agreement cannot be used as a hindrance to the prosecution of the suit for the foreclosure of the mortgage.”

In Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135), the effort of the defendant was to prove that a certain contract which he set out was intended to be given in full satisfaction of the claim and mortgage mentioned in the complaint; that the written agreement given in the answer was so accepted by the plaintiff, and that, as a consideration additional to the one stated in the written instrument for its execution, the plaintiff agreed to dismiss the foreclosure suit. Mr. Commissioner Kino, after stating the ordinary rule against the admission of parol evidence either to contradict, add to, detract from or vary the terms of a written instrument, used this language:

*608“But it is argued that it is always permissible to show by parol other and additional consideration than that specified in the contract, and that the averments are sufficient for that purpose; and this position is tenable where a monetary consideration is specified: Burkhart v. Hart, 36 Or. 586 (60 Pac. 205). But in the case before us the consideration specified in the writte'n contract consists of certain acts to be performed, and the authorities are * * unanimous in holding that, where the statement in the written instrument as to the consideration is of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to perform certain acts, it cannot be changed or modified by parol or extrinsic evidence. A party has a right to make the consideration of his agreement of the essence of the contract, and, when this is done, the consideration for the contract, with reference to its conclusiveness, must stand upon the same footing as its other provisions, and accordingly cannot be affected by the introduction of parol or extrinsic evidence” — citing authorities.

See, also, Tallmadge v. Hooper, 37 Or. 503 (61 Pac. 349, 1127); Stoddard v. Nelson, 17 Or. 417 (21 Pac. 456); Marx v. Schwarts, 14 Or. 177 (12 Pac. 253); Weidert v. State Ins. Co., 19 Or. 261 (24 Pac. 242, 20 Am. St. Rep. 809); Williams v. Mt. Hood Ry. Co., 57 Or. 251 (110 Pac. 490, 111 Pac. 17, Ann. Cas. 1913A, 177); Gill v. Columbia Contract Co., 70 Or. 278 (141 Pac. 163).

It will be observed that the language of the answer is-that the defendant “denies each and every material allegation in said complaint contained. ” We may well doubt if this constitutes a denial or amounts to more than the traverse of a legal conclusion: Montour v. Purdy, 11 Minn. 384 [Gil. 278] (88 Am. Dec. 88); Dodge v. Chandler, 13 Minn. 114 [Gil. 105]; Pry v. Hannibal etc. Ry. Co., 73 Mo. 123; Edmonson v. Phillips, 73 Mo. *60957; Moody v. Belden, 60 Hun, 582 (15 N. Y. Supp. 119); Lewis v. Coulter, 10 Ohio St. 451; Mead v. Pettigrew, 11 S. D. 529 (78 N. W. 945); Kimball v. Stanton (C. C.), 4 Fed. 325; New York Coach & Auto Lamp Co. v. Brown, 82 Misc. Rep. 92 (143 N. Y. Supp. 100). The reasons urged against that form of controverting an allegation are thaf it is for the court, and not the pleader, to determine what are material averments, and that it would be impossible to assign perjury upon the verification of such an answer, because the affiant reserves to himself the determination of what is material, and hence within the purview of his affidavit. In a long course of decisions we have continually held that no issue is raised by the allegation of a legal conclusion, and it is not apparent why the denial of one should not be attended by the same result.

Passing this question, however, it is not contended in the testimony for the defendant that the writing was not delivered. He makes no pretense but that he voluntarily parted with the custody of the writing which he had signed, and left it with the plaintiffs. If the answer challenges the delivery of the instrument, it does so by the merest technicality, but that question is not raised in the testimony. The supreme effort of the defendant was to incorporate in the written agreement a nullifying contemporaneous parol condition. The instrument in question was found in the possession of the plaintiff, from which we presume, under Subdivision 11 of Section 799, L. O. L., “that things in the possession of a person are owned by him,” and that the writing had been regularly delivered to the plaintiffs upon its execution by the defendant. It is true that their counsel asked the witness Wm. Miller, one of the plaintiffs:

“Did Mr. Weaver hand it over to you?”

*610And he answered:

“I don’t know that he handed it to me; it was signed on the desk in my presence; was picked np off the desk by me and folded and pnt away. ’ ’

There is nothing in that testimony, however, which would authorize us, as a matter of law, to say that it contradicts a delivery or overcomes the presumption of delivery arising from the possession of the instrument by the party who relies upon it. To hold to the contrary would make it indispensable that in every transaction involving the delivery of an instrument the party executing the same actually should take it into his hands and pass it into the manual custody of the opposite party. This would be a strained and unwarrantable construction to be placed upon any business affair. Neither does the testimony of Miller, quoted above, fall short of tending to prove delivery, because he says nothing about Weaver’s intent in the occurrence described. A person may sometimes state his own intent; but no witness can declare the mental purpose which actuates another. The jury alone must determine that from the evidence of acts and statements of the one whose intent is in question.

The plaintiffs requested the court to instruct the jury thus:

“I instruct you that, if you find that defendant delivered to plaintiffs the instrument signed by the defendant, a copy of which is annexed to plaintiffs’ complaint, and refused to comply with the terms thereof, and if plaintiffs performed their part of the agreement, you shall find for the plaintiff.”

The court, however, modified the request by annexing to it this language, “unless you find that plaintiffs and defendant entered into the oral agreement hereafter referred to,” alluding to the agreement re*611lied upon by tbe defendant in his answer. The modification of this instruction is clearly prohibited by the authorities already quoted, and the plaintiffs had a right to have their theory of the case submitted to the jury without the chang'e noted. The evidence strongly tends to show a delivery of the instrument; in fact, there is nothing in the testimony whatever to dispute that proposition, and the plaintiffs were entitled to go to the jury on the question. Above all, this is not a case where the court should arbitrarily disregard the rules of law announced by the well-considered decisions heretofore rendered by this court, and capriciously say that the verdict for the defendant was right notwithstanding any errors committed by the trial court. There is ample evidence to the effect that the plaintiffs did everything they could in the performance of their contract, and that the defendant refused to perform his part because he found a place where he could borrow the money without paying a broker’s fee. It may have been improvident of him to make the agreement in question, but, if he made it and violated it, he should respond to the plaintiffs according to his stipulation. The bill of exceptions discloses a case analogous to instances where a real estate broker employed to find a purchaser brings to the seller a buyer, ready, able and willing to purchase on the terms specified. It has been universally held that in such cases the broker earns his fee, although his employer refuses to continue the transaction and effect the sale.

The judgment should be reversed and the cause remanded for a new trial.

Mr. Justice Harris concurs in this dissent.