Security Leasing Company v. FLINCO, INCORPORATED

CALLISTER, Justice

(dissenting).

The majority opinion is premised on the assumption that the written agreement did not cover an essential aspect of the transaction, namely, the matter of programming of the Computyper for Flinco’s business. The majority, therefore, concluded that the trial court properly found that there was no integrated written document that contained all the agreements of the parties and ad*246mitted oral evidence to determine what was the arrangement between them.

I cannot agree with this analysis and believe it is a covert attempt to contradict, add, or vary the terms of the written agreement.

Plaintiff leased a chattel for a five-year term for a specified sum to defendant. Since this agreement cannot be performed in one year, it is within the statute of frauds, Sec. 25-5-4(1), U.C.A. 1953.

Under this section, unless the essential terms of the contract can be determined from the contract itself, it is within the statute of frauds, and, if thus defective, the defect cannot be supplied by parol proof, for by admitting parol testimony to supply the essential parts of the contract, would be to restore the mischief which the enactment of the statute of frauds was framed to prevent.1

It is significant that defendant did not assert that the contract was void under the statute of frauds, but took the position that it had a binding contract, of which an oral provision had been breached by plaintiff. The trial court found that as a result of the failure of plaintiff to program the Computyper fully to meet the needs of the daily operation of defendant’s business, there had been a failure of consideration and granted a judgment of no cause of action

Defendant, in fact, attempted to enlarge the terms of the contract and to impose obligations on the plaintiff additional to those stated in the writing. The mere fact that the Computyper could not perform the service for Flinco unless it was programmed does not mean that plaintiff was contractually obligated to do so. The same reasoning could be applied to an automobile rental agreement — the fact that the automobile will not function without fuel does not mean that the lessor is obligated to supply the gasoline.

“ * * * The rule is well settled that, where the parties have reduced to writing. •what appears to be a complete and certain agreement, it will, in the absence of fraud, be conclusively presumed that the writing-contained the whole of the agreement between the parties, that it is a complete memorial of such agreement, and that parol evidence of contemporaneous conversations, representations, or statements will not be received for the purpose of varying or adding to the terms of the written document. * * * ”2 [Emphasis added.]

The rationale of the foregoing presumption appears particularly applicable to the instant situation, where the effect of the *247addition of an oral agreement which is described as an essential term of the contract, is to render the contract void under the statute of frauds. It should again be emphasized that defendant pleaded neither .mistake nor fraud.

There is one other aspect of this action which merits attention; the oral agreement, .-as found by the trial court, contradicts the .terms of the written agreement, namely, ’.the Completion Certificate, which provides:

* * * that all installations or other ■work necessary prior to the use thereof has been completed; that said chattels .have been examined and/or tested and are in good operating order or condition, and are in all respect satisfactory to Undersigned and as represented, and that said chattels have been accepted by Undersigned for the purpose of said Equipment Lease. [Emphasis added.]

The finding of the trial court that there was a continuing obligation on the part of the lessor to program the machinery, as the lessee planned on putting the programming into the Computyper in stages starting with its accounts receivable and invoicing operations, directly refutes the express terms of the completion certificate.

This case should be reversed and remand.ed to the trial court for an appropriate disposition in accordance with this opinion.

HENRIOD, J., concurs in the dissenting .opinion of CALLISTER, J.

. Abba v. Smyth, 21 Utah 109, 115, 59 P. 756, 757 (1899).

. Rainford v. Rytting, 22 Utah 2d 252, 255, 451 P.2d 769, 770 (1969).