Bjornstad v. Northern States Power Co.
| Decision Date | 15 November 1935 |
| Docket Number | No. 30685.,30685. |
| Citation | 195 Minn. 439,263 N.W. 289 |
| Parties | BJORNSTAD v. NORTHERN STATES POWER CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Dakota County; Chas. P. Hall, Judge.
Action by B. F. Bjornstad against the Northern States Power Company. From an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial, defendant appeals.
Affirmed.
A. William Groth and Cyrus Erickson, both of Minneapolis, for appellant.
Alvin B. Christofferson and James E. Markham, both of St. Paul, for respondent.
The defendant appeals from an order denying its alternative motion for judgment in its favor notwithstanding the verdict, or, if that be denied, then for a new trial of the action.
Defendant is a public service corporation producing and distributing electric current for power and light uses by its customers. In 1925 plaintiff was the owner and in possession of a farm of about 350 acres in Dakota county in this state, upon which he had constructed or was then constructing a substantial dwelling house, barn, and other outbuildings, which were wired for electric current for lighting and power purposes. The defendant owned and operated a power line along a main public highway about a mile and a half distant from plaintiff's buildings. In July, 1925, plaintiff made an application to defendant to furnish electric current for his buildings. According to plaintiff's evidence, negotiations were thereafter had by him with Mr. Wagner, a representative of the defendant company. Plaintiff was informed he would have to build a lead line from his buildings out to defendant's power line on the highway, and that thereupon defendant would connect up with said line and furnish light and power service for his buildings. Plaintiff agreed to and did build the line, at an expense of $1,583.83. Defendant was notified that the lead line was completed and Mr. Wagner came to plaintiff's farm to see about the installation of service. He then informed the plaintiff that, in order to furnish the service, the defendant required that plaintiff should transfer to it the ownership of the lead line, constructed by plaintiff, by a bill of sale; that thereupon the service would be furnished and defendant would refund to plaintiff the cost of the line built by him; that, because of other similar situations in Wisconsin, the repayment of the cost of the line would be deferred for three years and plaintiff would then be repaid such cost with interest. Plaintiff agreed to this oral proposal and promise of payment, and thereupon signed and delivered to Wagner what is designated thereon as "Rural Service Agreement." This was done about December 5, 1925. After the three years expired, the plaintiff saw Mr. Wagner a number of times and was told that payment would be made, but none was made. Wagner in his testimony denied that he had these negotiations with plaintiff or made any agreement with him.
This action was commenced in May, 1933, to recover the cost of the line constructed by plaintiff, with interest, and plaintiff recovered a verdict. The assignments of error here are that the verdict is not sustained by the evidence and is contrary to law; that the court erred in denying defendant's motion for a directed verdict, and erred in certain rulings on the evidence.
1. Does the evidence sustain the verdict? The direct and positive testimony of plaintiff is corroborated by his wife as to statements made by Wagner to her or in her hearing, and further corroborated by the testimony of the witness Swenson that he, for the bank in which he was employed as cashier and manager, made a loan to plaintiff on the security of an assignment of plaintiff's claim here in question, that he went to the office of the defendant in Minneapolis and left the assignment there with Mr. Wagner, and that he inquired of Mr. Wagner as to the claim of plaintiff and was informed that it would be paid, but that he could not tell just what time, there was no date set. This transaction was apparently before the three-year period had expired.
The making of the oral agreement for the repayment to plaintiff of the cost of this service line, as above noted, is well sustained by the evidence.
2. In his motion for a directed verdict, defendant's counsel presented several grounds for such motion. One ground was that the agreement sued upon was void under the statute of frauds (Mason's Minn. St. 1927, § 8456), because it was not to be performed within one year and because it was an agreement, not in writing, for a sale of property for a price of more than $50. It is a sufficient answer that the contract has been fully performed by plaintiff, and the defendant has received and accepted the property involved. Langan v. Iverson, 78 Minn. 299, 80 N. W. 1051; Stitt v. Rat Portage Lumber Co., 98 Minn. 52, 107 N. W. 824; Nelson v. McElroy, 140 Minn. 429, 168 N. W. 179, 587.
3. Another ground presented was that the statute of limitations (Mason's Minn. St. 1927, § 9191) had run against the action. The agreement was to pay within three years and the cause of action did not accrue until three years after the agreement was made. This action was commenced about four and one-half years after the expiration of the three-year period, hence the statute of limitations had not run against its enforcement.
4. A third ground was that the written contract entered into about December 5, 1925, entitled "Rural Service Agreement," Exhibit 1, superseded all prior oral agreements and covered the entire subject-matter of the transactions between the parties and could not be varied by oral testimony as to other or additional consideration.
This third ground for a directed verdict raises the important question in the case. Is this rural service agreement complete so as to be a contractual agreement covering the purchase price of the lead line constructed and paid for by the plaintiff?
There is evidence that, some time prior to the signing of Exhibit 1, a mimeographed contract was signed by plaintiff and delivered to defendant. There is no evidence of the contents of this mimeographed contract. The plaintiff calls it a bill of sale, and defendant's witness Wagner testified that it was a preliminary copy of contract made because the printed form of Exhibit 1 had not yet been received by the company. The defendant had destroyed the mimeographed instrument. The evidence as to this instrument is not sufficient to be of any benefit to either party.
It is elementary law that, if the consideration stated in a written contract is more than a stated amount of money and is contractual and the contract covers the entire transaction between the parties, the contract cannot be varied by parol evidence to show a greater or different consideration. Thiem v. Eckert, 165 Minn. 379, 206 N. W. 721, 723. That case also states the further rule: "Before parol evidence can be admitted to show a collateral agreement, it must appear either from the contract itself or from the attendant circumstances that the contract is incomplete, and that what is sought to be shown as a collateral agreement does not in any way conflict with or contradict what is contained in the writing."
On this question of whether a contract is complete so that no collateral agreement may be shown, there are numerous decisions of this court holding contracts incomplete under various circumstances: Keough v. McNitt, 6 Minn. 513 (Gil. 357); Ruggles, etc., Co. v. Swanwick, 6 Minn. 526 (Gil. 365); Wallrich v. Hall, 19 Minn. 383 (Gil. 329); Domestic S. M. Co. v. Anderson, 23 Minn. 57; Wilson v. Hentges, 29 Minn. 102, 12 N. W. 151; Gammon v. Ganfield, 42 Minn. 368, 44 N. W. 125; Beyerstedt v. Winona Mill Co. 49 Minn. 1, 51 N. W. 619; Phœnix Pub. Co. v. Riverside Clothing Co., 54 Minn. 205, 55 N. W. 912; Aultman, Miller & Co. v. Clifford, 55 Minn. 159, 56 N. W. 593, 43 Am. St. Rep. 478; Staples v. Edwards & McCulloch Lumber Co., 56 Minn. 16, 57 N. W. 220; Vaughan v. McCarthy, 63 Minn. 221, 65 N. W. 249; Hand v. Ryan Drug Co., 63 Minn. 539, 65 N. W. 1081; Potter v. Easton, 82 Minn. 247, 84 N. W. 1011; Southwick v. Herring, 82 Minn. 302, 84 N. W. 1013; Rutherford v. Selover, 87 Minn. 495, 92 N. W. 413; McLoone v. Brusch, 119 Minn. 286, 138 N. W. 35; French v. Yale, 124 Minn. 63, 144 N. W. 451; W. W. Kimball Co. v. Massey, 126 Minn. 461, 148 N. W. 307; Wessel v. Cook, 132 Minn. 442, 157 N. W. 705; Farmers, etc., Co. v. Askegaard, 143 Minn. 13, 172 N. W. 881; Wade v. Nat. Bank of Commerce, 144 Minn. 187, 174 N. W. 889; Harding v. Texoleum Co., 154 Minn. 55, 191 N. W. 394; Osterberg v. Section 30 Development Co., 160 Minn. 497, 200 N. W. 738; Hoy v. Nichols, 170 Minn. 191, 212 N. W. 530.
While the writing itself is the criterion, it is not necessary that its incompleteness should appear on its face from a mere inspection. The situation of the parties, the subject-matter, and attendant circumstances may be shown in aid of construing the writing as to whether it is or is not complete. Here we have a prospective customer of the defendant desiring electric current service. He had, at defendant's demand, built a pole and wire line a mile and a half long to connect with defendant's power line at an expense of some $1,500. Defendant then required that he transfer to it the ownership of this line. Defendant is a public service...
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