Bruce v. Oberbillig

• Decision Date: 31 May 1928
• Docket Number: 4893
• Citation: 46 Idaho 387,268 P. 35
• Parties: MARY H. BRUCE, Appellant, v. J. J. OBERBILLIG, Respondent
• Court: Idaho Supreme Court

268 P. 35

46 Idaho 387

MARY H. BRUCE, Appellant, v. J. J. OBERBILLIG, Respondent

No. 4893

Supreme Court of Idaho

May 31, 1928

CONTRACTS-RIGHT OF ACTION FOR BREACH-WAIVER BY EXECUTION OF SUBSTITUTE CONTRACT-MERGER-QUESTION FOR TRIAL COURT.

1.In action for commissions for sale of mining stock, question whether prior oral agreement for commissions was merged in later written stipulations, by terms of which plaintiff received full settlement, held question of law for trial court's determination.

2.Where plaintiff sold shares of mining stock partly under original oral contract and partly under subsequent written agreement, formed on unification of the mining companies whereby plaintiff was to receive definite number of shares for services rendered to be taken in settlement, court, in action for commissions, properly found that the prior oral agreement became merged in the later written contract, and release thereunder barred plaintiff's recovery.

3.Where later contract covers entire subject matter of earlier one, is complete in itself and is inconsistent with the preceding contract, the later contract rescinds and supersedes the former and becomes the only agreement of the parties on the subject.

APPEAL from the District Court of the Third Judicial District, for Ada County.Hon. Clinton H. Hartson, Judge.

Action on contract.Judgment for defendant.Affirmed.

Judgment affirmed.Costs to respondent.Petition for rehearing denied.

Vestal P. Coffin, for Appellant.

Evidence of a prior oral agreement between the parties to a subsequent written contract is admissible, unless it appears that the two contracts relate to the same subject matter.(13 C. J. Distinct Agreements, 598.)

Therefore oral evidence to identify the subject matter of each contract is admissible if it does not contradict the plain terms of the writing.(6 R. C. L. 839, sec. 228.)

An executed or breached oral agreement, under which rights have become vested, is not, as a matter of law, thereafter merged in a subsequent written contract.Such merger could only take place by the clearly expressed intention of the parties, coupled with a valid consideration for such disposition of said vested rights as the writing attempts to make.(13 C. J., Rights Already Vested, 598;Luckey v. St. Louis & S. F. R. Co.,133 Mo.App. 589, 113 S.W. 703;Corey v. Woodin,195 Mass. 464, 81 N.E. 260;Porterfield v. American Surety Co. of New York,201 Mo.App. 8, 210 S.W. 119;Louisville, N. A. & C. Ry. Co. v. Craycraft,12 Ind.App. 203, 39 N.E. 523;Granger v. Kishi(Tex. Civ. App.), 153 S.W. 1161.)

Hawley & Hawley, for Respondent.

A subsequent written contract upon the same subject matter merges a prior oral one even though it has been performed in part.(Housekeeper Pub. Co. v. Swift,97 F. 290;Denny-Renton Clay & Coal Co. v. Johnson,88 Wash. 251, 152 P. 1017;Goss v. Northern P. Hospital Assn. of Tacoma,50 Wash. 236, 96 P. 1078;McCabe Const. Co. v. Utah Const. Co.,199 F. 976;Spreckels & Bros. Co. v. Bender,30 Ore. 577, 48 P. 418;Bourn v. Dowdell,5 Cal. Unrep. 820, 50 P. 695;Sherman v. Sweeney,29 Wash. 321, 69 P. 1117; 4 Page on Contracts, last edition, par. 2492, p. 4399.)

The question of merger is to be determined from the instrument and is a matter for determination by the court.(Idaho Products Co. v. Bales,36 Idaho 800, 214 P. 206;Seitz v. Brewers Refrigerating Machine Co.,141 U.S. 510, 12 S.Ct. 46, 36 L.Ed. 837;Kempner v. Goddard Grocer Co.,5 F.2d 807;Abbott v. Automobile Finance Co.,287 Pa. 505, 135 A. 223;Creamery Package Mfg. Co. v. Duncan,136 Mo.App. 659, 119 S.W. 33;Watkins Salt Co. v. Mulkey,225 F. 739, 141 C. C. A. 11;Fielding v. Williamson,118 Kan. 411, 234 P. 1003;Payne v. Commercial Nat. Bank of Los Angeles, 177 Cal. 68, 169 P. 1007, L. R. A. 1918C, 328.)

BUDGE, J. Wm.E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant was plaintiff in the court below.She filed a complaint against respondent alleging an oral contract between herself and respondent, entered into in February, 1920, whereby she undertook to sell for respondent certain mining stock in a group of quicksilver mines in consideration of the payment to her of commissions in cash, stock and a stock bonus; that she sold said stock to the extent of a considerable amount and received a part of the compensation due her under the said oral contract, but that there still remained due her certain cash commissions and shares of stock under a modification of her contract with respondent.

To the complaint a general and special demurrer was filed, as well as motions to strike and to require the complaint to separately state and number the cause of action.Prior to the time the demurrer and motions were to be heard it was agreed between the attorneys for the respective parties that the motions and certain parts of the demurrer would be waived, and that the complaint would be amended by interlineation and the case tried on the complaint so amended, without further or other amendments thereto.Thereafter the cause was tried to the court and a jury, and a verdict returned for appellant.A motion for new trial was granted, from which appellant prosecuted an appeal to this court, and the appeal was dismissed.Before the cause came on for retrial, appellant sought permission to amend her complaint by increasing the ad damnum clause, which was denied.After the filing of a second amended complaint and an answer thereto the cause was again tried, the trial court granting respondent's motion for nonsuit at the conclusion of appellant's case, and judgment was entered dismissing the action.The appeal is from the judgment, and the order denying appellant's motion for leave to amend her complaint by increasing the ad damnum clause.

The serious question before us is whether the court erred in entering judgment of nonsuit and in dismissing the action.If appellant was not entitled to a recovery on the merits, an amendment of her complaint as to the amount of damages prayed for would be immaterial.

It appears from the record that there were two contracts entered into between appellant and respondent in connection with the sale of stock issued by a number of companies owning a group of quicksilver mines in the Yellow Pine mining district.The first was an oral contract, entered into in February, 1920, the second a written agreement dated March 16, 1921.Operating under the oral contract, appellant sold quite a considerable block of stock in the various companies.Prior to the date of the second contract, a corporation had been formed whereby the various properties owned by the several mining companies were acquired by a corporation known as the United Mercury Mines Company.After the organization of the latter company, appellant sold a considerable amount of its stock.It is appellant's contention that the two contracts mentioned are separate and distinct, and that under her performance of each she is entitled to certain commissions in cash and stock which she has not received.Respondent takes the position that under the written agreement referred to, of date March 16, 1921, and appellant's so-called offer to the stockholders and directors of the United Mercury Mines Company, which was accepted by the board of directors of such company, the prior oral contract was rescinded or merged into the written agreements, by the terms of which appellant received full compensation and settlement of all her claims against the United Mercury Mines Company and respondent.The written contract of March 16, 1921, provides that for services rendered appellant should have and receive 300,000 shares of stock of the United Mercury Mines Company, of which 144,000 shares had been issued, the balance to be issued at a later date or upon the raising of a specified amount of money in the sale of additional stock....