Hendricks v. Knik Supply, Inc.

ERWIN, Justice

(dissenting).

I am unable to agree with my colleagues’ interpretation of Alaska’s parol evidence rule and its application in this case.1 I am also unable to accept their views regarding the effect of Roy’s delay in filing his claim for the bank account and bonds.

We purport to follow the objective theory of contract interpretation which we adopted in Pepsi Cola Bottling Co. of Anchorage v. New Hampshire Insurance Co.,2 strayed from in Alaska Placer Co. v. Lee,3 and apparently returned to in Smalley v. Juneau Clinic Building Corp.4 Under this theory, a court interpreting a fully integrated written contract must first objectively ascertain whether the terms of the contract are clear and unambiguous. If they are, the respective obligations of the parties must be determined from the language of the contract alone. Only if the contract is unclear or ambiguous may parol evidence be admitted to determine the intent of the parties.5

Applying this theory, I do not find the disputed phrase “cash and other personalty owned by either or both of the parties” 6 to be ambiguous or unclear. The word “cash” has a well-established legal meaning *549—“money or its equivalent” 7 — and has been construed to include bank deposits,8 commercial paper,9 bank bills,10 and even United States bonds.11 Thus, it is difficult to conceive why under an objective interpretation the word “cash” should not be construed to include the contested bank account and bonds without allowing parol evidence on the question of what the parties intended the word to mean.

That the language in question was agreed upon only after negotiations aimed at settling the Hendricks’ property dispute also influences my view that the word “cash” should be construed to include the bank account and bonds.12 In Oxford Commercial Corp. v. Landau13 the New York Court of Appeals emphasized the extensive negotiations preceding plaintiff’s written agreement not to sue in refusing to permit parol evidence on the issue of whether defendant was excluded from the effect of the agreement:

In the case before us, the plaintiff’s agreement not to sue “any person whomsoever” except those specifically named is too clear and precise to admit of evidence that the parties intended to exclude defendants from this all-inclusive category. ... In sum, the plaintiff corporation’s promise, contained in an integrated agreement reached after lawyer-guided negotiations and containing provisions quite unlike the stereotyped verbiage found in the usual standard general release, permits no conclusion other than that the plaintiff intended to release everyone who participated in the Carlin transactions except the parties expressly excluded.14

The import of prior negotiations aimed at solving a specific dispute is also illustrated in Birchcrest Building Co. v. Plaskove,15 *550where the Supreme Court of Michigan emphasized prior discussions culminating in a written agreement in holding that parol evidence was inadmissible to reform the agreement.

In the present case the disputed language is clear, has a well-established meaning, and was intended to settle a specific dispute. The admission of parol evidence for the purpose of ascertaining what the parties intended the language to mean is a retreat from the prior Alaska cases adopting the objective theory of contract interpretation.16

I would find that appellant is entitled to the three $1,000 bonds because it was established that they existed at the time of Mable’s death. However, I believe that the absence of proof regarding the existence of the bank account and the four additional bonds should prevent appellant from recovering them.

My colleagues further note that Roy did not file his claim for the bonds until a year and a half after Mable’s death and imply that Roy’s delay casts a serious doubt on the integrity of his claim.17 I find no legal obligation under the probate code, either past18 or present,19 to promptly file a claim against an estate and note only a 3-year statute of limitations establishing a time limit on the validity of a claim.20 It would be unfortunate for this case to be read as precedent for the view that claims filed within the statute of limitations become presumptively invalid as they approach the statutory limit unless the claimant proves satisfactory reasons for his delay. We have attached no such condition to statutes of limitations in other fields,21 and I do not perceive any public policy for doing so in this area.

There are as many valid reasons for a divorced spouse to delay filing claims against her former spouse, either before or after her demise, as there are invalid ones *551—not the least of which is a desire for some tranquility, particularly where an initial attempt at a fair distribution of the marital property has gone awry. I would thus attach no legal significance to a delay in filing or amending claims once it is established that there are assets to pay for them.22

I would reverse the decision of the superior court.

. See Erwin, Parol Evidence or not Parol Evidence in Alaska, 8 Alaska L.J. 20 (1970).

. 407 P.2d 1009, 1013 (Alaska 1965). See Port Valdez Co. v. City of Valdez, 437 P.2d 768, 771 (Alaska 1968).

. 455 P.2d 218, 221 (Alaska 1969).

. 493 P.2d 1296, 1305 (Alaska 1969). See my concurring opinion, id. at 1305.

. The objective theory of contracts is set out in the Restatement of Contracts §§ 229-31, 237-38 (1932) and explained in detail in 4 S. Williston, The Law of Contracts §§ 600-01, 609-10 (3d ed. W. Jaeger 1961).

. The disputed portion of the agreement states:

As consideration for the transfer of Real Estate shown in paragraph # 1 above, and acknowledging that the real estate is valued at approximately $12,000, and hereby declaring that other consideration has been received by Mable C. Hendricks, the said Hable C. Hendricks does hereby disclaim any interest she has or may have in any property owned by Roy Hendricks, or acquired by him during the marriage of the parties, and specifically disclaiming any and all interest in the following:
(a) Inventory and business known as the Thrift and Trade Mart.
(b) All vehicles owned separately or jointly by the parties up to December 12, 1967.
(c) Coin collection acquired by the parties.
(d) All cash and other personalty owned by either or both of the parties, (emphasis added)

. Black’s Law Dictionary 272 (4th ed. rev. 1968). Compare Webster’s New International Dictionary 415 (2d ed. 1960), which defines “cash” when used “strictly” in a commercial sense as “coin or specie,” and when used “less strictly” in a commercial sense as “bank notes, sight drafts, or demand deposits at a bank.”

. E. g., In re Feist’s Will, 170 Misc. 497, 10 N.Y.S.2d 506, 508 (Sur.Ct.1939).

. E. g., Commercial Credit Corp. v. Third & Lafayette St. Garage, 131 Misc. 786, 228 N.Y.S. 166, 167-68 (Sup.Ct.1928).

. E. g., Dunlap v. Whitmer, 133 La. 317, 62 So. 938, 943-44 (La.1913).

. E. g., Baldwin v. Baldwin, 107 N.J.Eq. 91, 151 A. 741, 742 (N.J.Ch.1930).

. The majority observes that I myself rely upon extrinsic evidence regarding the negotiated settlement of the Hendricks’ property dispute. Their observation is misplaced. The preamble to the agreement in question clearly indicates the nature and origin of the dispute and the parties’ desire that the agreement finally settle it:

WHEREAS, Roy Hendricks and Mable C. Hendricks have resolved their differences arising out of matrimony, said terminated on the 12th day of December 1967, by divorce . and
WHEREAS, certain property matters remain unresolved, although appearing to have been settled, and both parties wish to terminate all claims each might have on property or properties belonging to each other.

However, even assuming, arguendo, that I rely upon extrinsic evidence, this tack would not be inconsistent with an objective interpretation of the settlement agreement. Professor Williston, a leading proponent of the objective theory of contract interpretation, has stated:

[The parol evidence] rule is subject to three exceptions:
(2) If the words of the writing will express equally well the intention shown by the oral negotiations, and another intention. The negotiations may be used to show the actual intention of the parties not to subject them to a contract not expressed in the writing, but to show that the words of the writing bear a particular meaning.

4 S. Williston, The Law of Contracts § 630, at 947-48 (3d ed. W. Jaeger 1961) (footnotes omitted).

. 12 N.Y.2d 362, 239 N.Y.S.2d 865, 190 N.E. 2d 230 (N.Y.1963).

. Id. at 231-232, 239 N.Y.S.2d at 867, 190 N.E.2d at 231 (citations omitted).

. 369 Mich. 631, 120 N.W.2d 819, 823 (Mich.1963).

.Even assuming that parol evidence on the parties’ intent was properly admissible to aid interpreation of the disputed phrase, as the majority contends, I disagree with the trial court’s evaluation of it. It is clear from the testimony of the attorney who represented both parties and drafted the agreement in question that the disputed bonds were intended to be included within the scope of the agreement:

Q At the time that the document was prepared, were you aware of the fact that there were certain bonds that Mrs. Hendricks was holding or that she had in her possession?
A Yes.
Q And was it your understanding from the —when you made that agreement up, and from the instructions of Mrs. Hendricks and Mr. Hendricks that that was part of the property that she was to return to Mr. Hendricks under that agreement?
A As I recall it, it was all the property that had changed hands at the time of the divorce; it was again changing hands, including bonds and vehicles and everything else that were involved.
Q So, if she had any bonds that they had obtained during the time of their marriage, they were to be returned to — or given to Mr. Hendricks under that agreement?
A Yes.

Roy’s testimony was to the same effect. In response to an inquiry concerning the events surrounding the final settlement, he stated :

A . [A]t that time she made the final settlement . . . [she] agreed that she would turn all of my bonds back.
Q Is that when she made this final property settlement and agreed to turn all personal property back to you?
A That is correct.
Q And did that personal property include these bonds that you’ve been claiming here?
A Yes, it did ....

Since Roy and the attorney were the only two witnesses who testified as to the intent of the parties, I would find the trial court’s determination with respect to the three $1,000 bonds to be clearly erroneous. Alaska Placer Co. v. Lee, 455 P.2d 218, 224 (Alaska 1969) ; Alaska R.Civ.P. 52(a).

. Notes 5 and 6 of the majority opinion supra.

. ACLA § 61-13-2 (1949) (repealed 1973).

. AS 13.16.455, 13.16.460.

. AS 13.16.460(a)(2).

. Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971); Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968); Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

. I would further limit the discussion of the claims in the majority opinion by disclaiming any intention to suggest that prompt filing of a claim is always necessary to recovery, for there are equitable interests which are not barred by the statute of limitations. See Geist v. O’Connor, 92 F.Supp. 451, 458-459, 13 Alaska 15, 30-31 (D.C.1950); Comment, Equitable Claims Against Estates: Probate Jurisdiction and Statute of Limitations, 5 St. Louis U.L.J. 578 (1958).