Baker v. Jewell
Decision Date | 29 April 1959 |
Docket Number | No. 9698,9698 |
Citation | 96 N.W.2d 299,77 S.D. 573 |
Parties | Robert J. BAKER and Claude Potter, d/b/a Grandview Trailer Mart, Plaintiffs and Appellants, v. Melvin M. JEWELL and Rosemary Jewell, Defendants and Respondents. |
Court | South Dakota Supreme Court |
Bangs, McCullen & Butler and Burnell Hendricksen, Rapid City, for plaintiffs and appellants.
William Rensch, Rapid City, for defendants and respondents.
On or about December 4, 1956, the plaintiff Trailer Mart sold a house trailer to Mr. and Mrs. Jewell, the defendants above named, under a conditional sale contract. They made the down payment and three required monthly payments, after which they notified the Trailer Mart in writing that they had rescinded the contract because of breach of warranties. The Trailer Mart then instituted this action to recover possession of the property involved.
By their responsive pleading the Jewells claimed that the trailer house was not as represented and warranted and asked that they be given judgment in the sum of the payments made. The jury found for the Jewells and allowed the sum requested. The judgment entered awarded them this amount and cancelled the conditional sale contract and the promissory note given in connection therewith. It also gave the Trailer Mart possession of the property in question. Motions for judgment notwithstanding the verdict and a new trial were denied. The Trailer Mart appeals from the judgment.
The contract involved contains this stipulation: 'No warranties, express or implied, representations, promises or statements have been made by the seller unless endorsed hereon in writing.' During the trial the Jewells introduced testimony to the effect that the trailer they received did not correspond in workmanship, design or furnishings with the oral representations made to them by the Trailer Mart when they were negotiating their purchase. This evidence was objected to on the ground that it was an attempt to vary the terms of a written contract contrary to the parol evidence rule and for the further reason that it was excluded by the quoted provision of the contract. The admission of this evidence is the dispositive question presented by this appeal.
The parol evidence rule in this state is based on statute. SDC 10.0604. It was stated thus in Farmers' Elevator Company of Colton v. Swier, 50 S.D. 436, 210 N.W. 671, 673:
'* * * where a contract which has been reduced to writing and executed by the parties is complete, clear, and unambiguous in its terms and contains mutual contractual covenants, or where the consideration consists of a specific and direct promise to do or not to do certain things, this part of the contract, in the absence of fraud, mistake, or accident, cannot be changed or modified by parol or extrinsic evidence, nor can new terms be added to the contract, nor to the contractual consideration therein expressed, nor, where all these facts exist, may a party to a contract show that he was induced to sign the contract by the making of a prior or contemporaneous oral agreement, where such showing would be tantamount to adding to or subtracting from the contractual consideration expressed in the written contract.'
This statement of the rule was quoted with approval in Kindley v. Williams, 76 S.D. 225, 76 N.W.2d 227, 57 A.L.R.2d 1070.
In consonance with this principle parol evidence of a warranty or representation made prior to or contemporaneously with the writing will not be admitted to add to or vary such writing. However, the parol evidence rule may not be invoked when it is sought to establish fraud as a ground for rescinding the contract. While the integration clause may be of evidential value on the question of what statements were made, it does not render inadmissible parol evidence offered for the purpose of proving fraud. National Cash Register Co. v. Mahaney, 49 S.D. 1, 205 N.W. 710; Annotation 56 A.L.R. 56. In that situation the testimony is not offered as adding to or varying the written contract but to avoid the contract in toto on the ground of fraud.
The Trailer Mart contends that the Jewells pleaded only a cause of action for breach of warranty under SDC 54.0169, and that under the rule above stated, testimony is not admissible to vary or add to the warranties contained in the written contract. While the notice of rescission which was served supports this view, the nature of the cause of action must be determined from the allegations of the pleading involved. Concerning this feature of the lawsuit the Jewells alleged:
For the purpose of determining the effect of a pleading its allegations must be liberally construed with a view of substantial justice between the parties. SDC 33.0915. An examination of the quoted allegations compels us to the conclusion that the Jewells pleaded a cause of action for rescission of the contract on the ground of fraud. While good pleading requires that when several causes of action are set out in one complaint th...
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