Brewer v. National Surety Corporation

• Decision Date: 25 August 1948
• Docket Number: No. 3644.,3644.
• Citation: 169 F.2d 926
• Parties: BREWER et al. v. NATIONAL SURETY CORPORATION.
• Court: U.S. Court of Appeals — Tenth Circuit

169 F.2d 926 (1948)

BREWER et al. v. NATIONAL SURETY CORPORATION.

No. 3644.

Circuit Court of Appeals Tenth Circuit.

August 25, 1948.

O. B. Martin, of Oklahoma City, Okla. (Andrew Fraley, of Oklahoma City, Okla., on the brief), for appellants.

Clyde Watts, of Oklahoma City, Okla. (Looney, Watts, Ross, Looney & Smith, of Oklahoma City, Okla., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal from the judgment of the trial court dismissing appellants' cause of action on the ground that appellants' amended complaint and the opening statement of their counsel did not state a cause of action against appellee. The sole question is whether the amended complaint and the opening statement of counsel, if established, were sufficient to show that one Roy C. Davis and Roger W. Davis were employees within the provisions of a Blanket Honesty Insurance Policy issued by appellee defining "employee" or "employees" as those "in the regular service of the insured in the ordinary course of the Insured's business, and who are compensated by salary, wages, and/or commissions, and whom the Insured has the right to govern and direct at all times in the performance of such service * * * but not to mean brokers, factors, commission merchants, consignees, contractors, or other agents or representatives of the same general character."

The amended complaint, so far as material, alleged substantially these facts:

That on December 15, 1946, appellants engaged Roy C. Davis and Roger W. Davis as employees to work for them pursuant to an oral contract under which they were to solicit orders for building materials in the State of California, which materials were to be furnished by appellants and were to be transported from Oklahoma City and delivered to customers in California obtained by the employees; that the employees were to make collections on the sale and delivery of the merchandise in California and transmit the collected funds to appellants; that all costs and expenses incident to the sale and delivery of the merchandise were to be deducted and fifty per cent of the net proceeds remaining was to be paid to the employees as their compensation; that it was orally agreed that appellants would govern and direct said employees in the performance of said contract and generally govern, direct and supervise their activities in the sale and delivery of the building materials handled by them under said agreement. The complaint then alleged defalcations which would make appellee liable under the bond if the Davis brothers were employees.

The amended complaint further alleged that the parties operated under the oral contract from December 15, 1946, to December 28, 1946, and that on December 28, 1946, a written contract was executed by the same parties. A copy of the written contract attached to the complaint, while executed December 28, 1946, recites that it was entered into on December 15, 1946. The pertinent provisions of the written contract are set out in footnote one.¹ It thus appears that the written contract covers the identical period of time covered by the alleged oral contract. It also covers the same business transactions and contemplates the same course of business between the same parties as those provided for under the alleged oral contract.

It is competent for the parties to agree that a written contract shall take effect as of a date earlier than that on which it was executed, and when this is done, the parties will be bound by such agreement.²

15 O.S.A. § 137, provides that: "The execution of a contract in writing, whether the law requires it to be written or not. supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument."

In Seal Oil Company v. Roberson, 175 Okl. 140, 51 P.2d 801, 805, the Oklahoma Supreme Court said: "* * * that under such facts the written contract is the sole depository of the agreement of the parties on all matters which were the objects of their negotiations, and such contract cannot be altered, varied, contradicted, enlarged, narrowed, nor added to by parol testimony * * *"

See also cases collected under Note 2 and Note 3, 15 O.S.A. § 137. It follows that we must look to the written contract alone to determine whether the Davis brothers were employees under the provisions of the policy in question. An examination of the appended contract clearly indicates the absence of an employer and employee relationship between the parties thereto.

The trial court correctly concluded that the contract did not establish the relationship of employer and employee. The Davis brothers were not...