Boyd v. Paul
| Decision Date | 20 November 1894 |
| Citation | 28 S.W. 171,125 Mo. 9 |
| Parties | Boyd, Appellant, v. Paul |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.
Action for damages for breach of a contract thus in substance described in the petition: On the twelfth day of September 1891, plaintiff owned one third of a promissory note for $ 9,000, secured on real estate, whereupon he contracted with defendant on said date to transfer to him such interest, and in return therefor defendant, the owner of two fifths interest in a mining lease with an unexpired term of thirteen years on certain mining lots, and the like fractional interest in the tools and machinery on said lots, agreed, on the date aforesaid, to transfer to plaintiff the said two fifths he owned in said lease to said lots, machinery and tools heretofore mentioned, and that he would deliver the possession of said mining lots, tools and machinery to plaintiff on October 30, 1891. Plaintiff performed his agreement by assigning to defendant his one third interest in said note, but defendant as to his said contract failed in this, that he refused to deliver to plaintiff the possession of said mining lots, tools and machinery before described etc., by reason of which plaintiff is damaged in the sum of $ 4,000, etc.
Defendant in his answer denied generally, etc., and then denied having made the agreement with plaintiff respecting the $ 9,000 note, or that in contemplation thereof he would transfer to plaintiff the said two fifths interest that he owned in said lease, etc., or that he would put plaintiff in possession of the mining lots, etc. Defendant admitted that he did on September 14, 1891, assign to plaintiff said two fifths interest owned by defendant in said lease, tools, and machinery for an interest in the note mentioned, but denied that he agreed to deliver possession of the property, etc. Defendant also answered that said contract and assignment made by him to plaintiff was wholly written and not at all oral.
It turned out on the trial, that the assignment of the lease in question, was indorsed thereon, and was in these words:
And further it appeared in evidence that the residue of the agreement in reference to giving possession, etc., was verbal and was made before the written instrument above set forth.
On objection made by defendant the court excluded the verbal portion of the agreement and plaintiff took a nonsuit, with leave, etc., which the court refused to set aside, and plaintiff appeals.
Affirmed.
J. C. Trigg and J. W. McAntire for appellant.
(1) Parol evidence may be introduced to supply a matter omitted from a writing where it is apparent from the writing itself that it does not contain the whole transaction. Brown v. Bowen, 90 Mo. 184; Briggs v. Munchon, 56 Mo. 467; Lash v. Parlin, 78 Mo. 391; Norton v. Bohart, 105 Mo. 616. (2) It can be used where it is not intended that the written contract should state the whole agreement between the parties. 17 Am. and Eng. Encyclopedia of Law, 435; Hawkners v. Lea, 8 Lea (Tenn.), 42. (3) Parol evidence may be introduced showing a contemporaneous parol contract of which the agreement evidenced by the written contract is the consideration. Providing, also, that from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole transaction. Stephen on Evidence, 844; 17 Am. and Eng. Encyclopedia of Law, 443; 9 Pa. St. 220. (4) Contract for occupancy by the grantor, collateral to a deed of the premises. Willis v. Hubbart, 117 Mass. 151; 39 Mass. 271. (5) Parol evidence of the terms of the contract is admissible where the instrument is executed in part performance only of a verbal contract. 17 Am. and Eng. Encyclopedia of Law, 445; Berks v. Gutest, 13 Ill.App. 369. (6) Parol evidence is admissible to explain circumstance under which a lease was made in order to raise an implied covenant, and there is an implied covenant of possession and enjoyment and possession is necessarily implied although not expressed. 12 Am. and Eng. Encyclopedia of Law, 1012; Kelsey v. Durkee, 33 Barb. 410. (7) A parol agreement to build a party wall, is within the statute of fraud, but if the party builds such a wall upon the faith of the defendant's agreement to pay one half the cost when he uses it, such building is a part performance sufficient to take the agreement out of the statute and an action in the covenant will lie. 4 Am. and Eng. Encyclopedia of Law, note, 499; Rawson v. Bell, 46 Ga. 19; Buedge v. Baker, 57 N.Y. 207.
Cunningham & Dolan for respondent.
(1) The record does not show that it was necessary for, or imperative upon, the plaintiff to take a nonsuit, and if we are right in this, he had no standing in this court. For all that appears he might have gone on and shown the breach of contract by defendant, with evidence of his damage, and introducing the lease and written assignment would have, at least, made a prima facie case, provided the defendant was liable at all. State ex rel. v. Gaddy, 83 Mo. 138; Koge v. Hays, 57 Mo. 330; Hageman v. Moreland, 33 Mo. 87. (2) A warranty of quality of property is collateral to the sale for which the title will pass without such warranty, but when such an understanding is entered into, it will form part of the contract by the agreement of the parties. Benjamin on Sales, 452. (3) When the contract of sale has been reduced to writing, parol evidence is inadmissible to add a contract of warranty to the terms of the contract as expressed in writing. ...
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