Barrett v. First Nat. Bank of Green River

• Decision Date: 24 November 1936
• Docket Number: 1988
• Citation: 50 Wyo. 502,62 P.2d 318
• Parties: BARRETT v. FIRST NAT. BANK OF GREEN RIVER, ET AL
• Court: Wyoming Supreme Court

62 P.2d 318

50 Wyo. 502

BARRETT v. FIRST NAT. BANK OF GREEN RIVER, ET AL

No. 1988

Supreme Court of Wyoming

November 24, 1936

APPEAL from the District Court, Sweetwater County; H. R. CHRISTMAS Judge.

Action by James Barrett against the First National Bank of Green River, Wyoming, a corporation, and others. From the judgment the plaintiff appeals.

Affirmed.

For the appellant, there was a brief and the cause was argued orally by Walter Q. Phelan of Cheyenne.

The court erred in sustaining objections made by counsel for defendants to the admission of parol evidence offered by plaintiff, to show that the consideration named in the lease was not the entire consideration. 10 R. C. L. 1042, 22 C. J 1157. It is unnecessary to allege fraud, accident or mistake, in order to prove the real consideration for the execution of an instrument. Porter v. Grimm, 12 A. L. R. 349; Hurst v. Kirkbride, 1 Binn. 616; Pacific-Wyoming Oil Company v. Carter Oil Company, 31 Wyo. 314; Kauffman v. Roeder, 108 F. 47, 54 L.R.A. 247. This is an equity case and equity will not suffer a wrong to be without a remedy. Defendants' pleadings allege that there were other arrangements and understandings between the plaintiff and defendant T. S. Taliaferro, Jr., outside of the written instruments. Defendant admitted on cross-examination that there were other agreements, but that they were not in writing. Where an instrument does not express the entire agreement, the parol evidence rule does not apply to prevent the introduction of extrinsic evidence to explain the transaction. 22 C. J. 1283. Moore v. Williamson, (Ala.) 42 A. L. R. 981; Curley v. Vizard, (Ala.) 84 So. 299; Richardson v. Lamp, et al., (Cal.) 290 P. 14; Cashion v. Bank of Arizona, (Ariz.) 245 P. 360; Wurdeman v. Waller, et al., (Cal.) 291 P. 248; MacLorinan, et al. v. Finley, (Kan.) 261 P. 587; Sunburst Oil and Gas Co. v. Neville, et al., (Mont.) 257 P. 1016.

For the respondents, there was a brief by T. S. Taliaferro, Jr., A. L. Taliaferro and Lewis H. Brown of Rock Springs and oral argument by Messrs. Brown and T. S. Taliaferro, Jr.

A written lease cannot be varied by parol evidence, where such lease contains various covenants and agreements, and where the rental to be paid is contractual and promissory in nature, as distinguished from a mere acknowledgment or receipt of money. 10 R. C. L. 1042, 22 C. J. 1569, page 1171. The authorities cited by counsel for appellant are not applicable to the present situation, and may be readily distinguished from cases followed by the trial court. We concede that the Pennsylvania rule set forth in Potter v. Grimm, 94 A. 185, is an exception to the acknowledged weight of authority in this country. See 88 A. L. R. 1380. The following cases clearly illustrate the distinction between a consideration expressed as a mere recital and one expressed in a contractual transaction. Halsey v. Minn., (S. C.) 188 S.E. 29; Pacific-Wyoming Oil Company v. Carter Oil Company, 31 Wyo. 314; Bunten v. Rock Springs Grazing Association, 29 Wyo. 488, 23 C. J. 61. Parol evidence can be admitted only where the contract of writing on its face shows that it does not express the entire agreement of the party, and that such evidence is inadmissible in the case of a contract which by its terms purports to express the whole agreement. 22 C. J. 1289; Missouri Telegraph Co. v. Morris, 243 F. 481; Sellers v. Dickert, 64 So. 40; Title Company v. Nichols, 100 P. 825; American Company v. Whittaker, 140 S.W. 132; Whittier v. Bank, 119 P. 92; McNair Land Company v. Adams, 45 So. 492; Jarrett v. Prosser, 130 P. 376; Burton v. Morrow, 32 N.E. 921; Knabe v. Bowles, 91 A. 567; Bradley v. Davis, 55 So. 17; Brockway v. Blair, 165 P. 455; Emery v. Dana, 84 A. 976; Keener v. Graham, 96 S.E. 98; Midland Company v. Furman, 97 S.E. 831; Lewis v. Turnley, 36 S.W. 872; Halverson v. Walker, 112 P. 804; Kipp v. Laun, 131 N.W. 418; Moore v. Williamson, (Ala.) 42 A. L. R. 981; Peterson v. Matchinski, (Cal.) 291 P. 248; Loganbill v. Zook, (Ariz.) 3 P.2d 273; Bankers Company v. District, (Utah) 220 P. 710. The rule was clearly set forth in the Wyoming cases of Bushnell v. Elkins, 34 Wyo. 495; Dunn v. Gilbert, 36 Wyo. 249; Sugar Corp. v. Fritzler, 42 Wyo. 446. When an offer of testimony includes that which is admissible, with that which is not, it is not the duty of the court to separate the legal from the illegal, but the whole may be rejected when objection is made. Jones on Evidence, Vol. III, Sec. 897, page 1970.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

The following are the facts, so far as they are necessary to be stated, for the determination of this case. Plaintiff is the owner of certain real estate situated in Sweetwater County, Wyoming. On January 27, 1931, he executed a mortgage thereon to the defendant bank to secure the sum of $ 4000, and, the debt being unpaid, it commenced to foreclose the mortgage on April 13, 1935, prior to the commencement of this action, and thereafter sold the land and bid it in. On February 26, 1931, plaintiff executed to the Big Sandy Live Stock Company a lease for the premises above mentioned, for the period of five years, running from November 1, 1930 to November 1, 1935. The lease is in the usual form ordinarily used in this state, and complete on its face, wherein the lessee agrees to pay as rental for the premises the sum of $ 500, payable at the rate of $ 100 per annum, in advance, and containing further the usual covenants found in the ordinary lease. The plaintiff claims, and alleges in his petition, that this lease was executed at the special instance of the defendant Taliaferro, who at the time represented the plaintiff as attorney; that the amount of $ 500 agreed to be paid to the plaintiff as rental was merely a nominal consideration; that in further consideration of the lease the defendant Taliaferro and the Big Sandy Live Stock Company agreed to pay the annual taxes assessed against the property, and to pay the defendant bank annual payments equivalent to one-fifth each year due upon the mortgage, so that it would be paid in full at the end of the expiration of the lease, but that they failed and refused to do so, and entered into a conspiracy not to do so, in which the defendant bank joined; that for the purpose of carrying out such conspiracy, the defendant bank failed and neglected to notify the plaintiff that the mortgage had not been paid, and foreclosed it and became a purchaser of the property. Plaintiff, accordingly, claims that the mortgage should be held to have been paid, and asks that the foreclosure proceedings be declared void. Answers were filed by the various defendants denying the conspiracy and the agreement of Taliaferro and the Big Sandy Live Stock Company to pay the mortgage and the taxes above mentioned. The case was tried to the court without a jury. It found generally in favor of the defendants, but it appearing that the rental of five hundred dollars had not been paid, judgment for that amount was entered in favor of the plaintiff and against the Big Sandy Livestock Company. The plaintiff has appealed.

Plaintiff has assigned a number of errors, but, as stated in his counsel's brief, the sole question before the court is as to whether or not the trial court erred in refusing to permit the plaintiff to prove by parol testimony that, in addition to the consideration of $ 500, the defendants Taliaferro and the Big Sandy Livestock Company agreed to pay the taxes and the mortgage above mentioned, in face of the fact that the written lease appears to be complete on its face. It is not claimed that plaintiff signed or executed the lease through fraud or mistake, and no reformation of the lease is asked but the contention is merely that the whole of the contract was not embodied therein. In other words, plaintiff seeks to vary the written contract, and establish by parol an additional undertaking. He contends that the parol evidence rule does not apply, for the reason that the real consideration may always be shown, though that varies and contradicts a written contract. We confine our decision to that contention. The principle involved was settled by this court in the case of Cary v. Manfull, 41 Wyo. 476, 287 P. 433. We...