concurring in part and dissenting in part.
Because a condition involving a forfeiture must be interpreted strictly against the party for whose benefit it is created (§ 9-01-15, NDCC), I concur in the reversal of the judgment, but I dissent from that part of the majority opinion which reinstates both the October 16, 1972, contract and the September 20, 1974, contract. I would remand for a redetermination of the issue on a contract-merger theory.
“The general rule is that where the parties enter into a written contract all prior negotiations, understandings, and verbal agreements on the same subject are merged in the written contract, and are accordingly extinguished. Also, upon the execution of a valid substituted agreement, the original agreement becomes merged into it and is extinguished.” 17 Am.Jur.2d, Contracts § 483. “Ordinarily, the question as to how far a subsequent contract alters a former one is one of fact for the jury.” 17 Am. Jur.2d, Contracts § 459.
“A contract may be discharged or abrogated by a new contract with the effect of altering the terms of the original or of rescinding it altogether.” 17A C.J.S, Contracts § 394.
“A contract complete in itself will be conclusively presumed to supersede a pri- or one between the same parties and concerning the same subject matter where the terms of the two are so inconsistent that they cannot subsist together.” 17A C.J.S., Contracts § 395.
In spite of the apparent agreement between Sadler and Ballantyne that there would be no merger of title nor of contract in this case, I believe that public policy requires that the courts be not prevented from determining when two contract provisions are so inconsistent that they cannot subsist together. The parties apparently ignored the nonmerger provision when they permitted offset of obligations. To require the fulfillment of each of the obligations in each of the two contracts would require idle acts (§ 31-11-05(23), NDCC). Conditions which are impossible are void (§ 9-01-14, NDCC).