Cox v. Fleisher Construction Co.

• Decision Date: 07 April 1927
• Docket Number: 36815
• Parties: RALPHE H. COX, Appellee, v. FLEISHER CONSTRUCTION COMPANY, Appellant
• Court: Iowa Supreme Court

223 N.W. 521

208 Iowa 458

RALPHE H. COX, Appellee, v. FLEISHER CONSTRUCTION COMPANY, Appellant

No. 36815

Supreme Court of Iowa, Des Moines

April 7, 1927

OPINION ON REHEARING FEBRUARY 12, 1929.

REHEARING DENIED JUNE 24, 1929.

SUPPLEMENTAL OPINION JANUARY 10, 1928.

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

Action to recover for services claimed to have been rendered by the plaintiff for the defendant. The jury returned a verdict in favor of the plaintiff, and from judgment rendered thereon the defendant appeals.--Affirmed on condition.

Affirmed on condition.

Carr Cox, Evans & Riley, for appellant.

Stipp Perry, Bannister & Starzinger and William Hossfeld, for appellee.

DE GRAFF, J. ALBERT, C. J., and STEVENS, FAVILLE, MORLING, and KINDIG, JJ., concur. EVANS, J., takes no part. WAGNER, J., dissents.

OPINION

DE GRAFF, J.

This is the third submission of this cause in this court. The opinion in the original submission is found in 213 N.W. 442, and the supplemental opinion on rehearing is found in 217 N.W. 426.

Appellee's action is for compensation for services rendered to the appellant in securing contracts for the construction of a number of buildings in the city of Des Moines. The appellee's petition is in three counts. One of said counts seeks recovery on a written contract between the parties, executed March 1, 1922, providing for the payment of a commission to the appellee for services in developing and assisting in financing the construction of income-bearing properties; and appellee alleges that he performed services thereunder in connection with the property known as the Commodore Apartments. Appellee avers that, on or about September 15, 1922, the appellant and appellee entered into an oral contract respecting the amount that should be paid to appellee under the contract of March 1st for his services connected with the Commodore Apartments, and alleges that appellant agreed to purchase and deliver to him for his said services common stock of the Commodore Building Company of the par value of $ 6,250 and preferred stock of the Commodore Building Company of the par value of $ 20,000, and alleges that appellant has failed and refused to purchase and deliver said stock to appellee; and damages are prayed therefor in the sum of $ 26,250.

In another count, the appellee sued in quantum meruit for services performed in connection with obtaining the contract for the construction of the Commodore Apartments. This count was not submitted to the jury.

In another count, the appellee claimed that he had rendered services under the contract of March 1, 1922, and obtained for the appellant a contract for the construction of three apartment houses in the city of Des Moines, known as The Oaks, The Birches, and the Elmwood; also a contract for the construction of a property known as the Bolton Apartments, and another property known as the Frederick. Appellee also set up a contract dated June 22, 1922, alleging the same to be supplementary to the contract of March 1, 1922, and referring to the last three described properties. Appellee claimed that there was a balance due under said contracts of $ 6,700.

The appellant in its answer admitted the execution of the contract of March 1, 1922. By way of counterclaim, appellant avers that the appellee had breached said contract of March 1, 1922, by failing to give his entire time to the business of appellant and by diverting business to others, and sought damages therefor in the sum of $ 5,000. This counterclaim was withdrawn by the court. Appellant also pleaded that it had paid appellee $ 12,161.01, and alleged appellee's breach of contract, and sought recovery of said sum by way of counterclaim. This counterclaim was withdrawn from the consideration of the jury.

Appellant further pleaded that, on or about the 25th day of October, 1922, it entered into a written agreement with the appellee, with supplement thereto, by which the latter agreed to buy from the appellant 62 1/2 shares of the common stock of the Commodore Building Company at par, and prayed judgment for $ 6,250 under said contract. Appellant's motion for a directed verdict was overruled.

I. We first consider the question with regard to the 62 1/2 shares of stock for which appellee sought recovery. Appellee relied on an alleged oral agreement of September 15, 1922, under which he claims that appellant agreed to buy and deliver said stock to appellee for his compensation for work in connection with the Commodore Apartments. It appeared, however, that, on October 25, 1922, the parties entered into a written contract, which, among other things, provides:

"The company does hereby agree to sell to each of the parties of the second part, sixty-two and one-half (62 1/2) shares of the common stock of said Commodore Building Company at par, and guarantees that there will be no claims against said company or liens against said premises including building, except those which are herein mentioned.

"Each of the parties of the second part does hereby agree to purchase sixty-two and one-half (62 1/2) shares of the common stock of said Commodore Building Company from the party of the first part at par, and pay for the same at such time as the building has been delivered to the Commodore Building Company and upon the delivery of said stock."

Appellant is the "company" referred to in said contract, and appellee is one of the "parties of the second part." Appellant contends that the court erred in admitting the evidence of the appellee of the alleged parol agreement of September 15, 1922, the claim being that the written agreement of October 25, 1922, alone must govern. Appellant invokes the familiar rule that, between the parties, parol evidence of a prior oral agreement is not admissible to vary the terms of a written agreement.

The oral testimony in regard to the alleged parol contract of September 15, 1922, is as follows:

"Q. What was said between you and Mr. Fleisher about this common stock of the Commodore Building Company? (Objected to as incompetent, tending to vary the terms of the written instrument by parol, in the contract, the execution of which is admitted in the pleadings, and the $ 6,250 which this plaintiff offered to buy is merged in the contract. Overruled. Excepted to.) A. Mr Fleisher said 'all right' to my receiving $ 20,000 of the preferred stock and one fourth of the common stock; he agreed to pay for that and give that to me as part of my commission. (Move to strike the statement 'He agreed to pay for that,' as a conclusion of the witness. Sustained. Excepted to.)

"Q. What did you say to Mr. Fleisher about his paying for the $ 20,000 of preferred stock and the $ 6,250 of common stock and delivering it to you as a commission on the Commodore Apartments? A. I accepted it."

It is unnecessary to cite authorities sustaining the familiar rule that parol evidence is not admissible between the parties to change or vary the terms of a written instrument. We have, however, recognized the rule that, where the parol evidence tends to show an independent oral contract which is not a contradiction, modification, or qualification of the written contract, evidence of the parol contract is admissible. Ingram v. Dailey, 123 Iowa 188, 98 N.W. 627; Hall v. Barnard, 138 Iowa 523, 116 N.W. 604; Sieberts v. Spangler, 140 Iowa 236, 118 N.W. 292.

The question at this point is whether the alleged oral contract is so independent of the written contract that evidence in regard to it is admissible. Both contracts deal with 62 1/2 shares of common stock in the Commodore Building Company. Both contracts refer to a transfer of that number of shares of stock from the appellant to the appellee, but there is a distinct variance between the two agreements as to the payment for said shares. While both contracts refer to the same number of shares of stock, it by no means follows that they refer to and deal with the same shares. It is the contention of the appellee that by the oral contract of September 15, 1922, he was to receive 62 1/2 shares of the common stock of the Commodore Building Company as a part of his commission. The written contract of October 25, 1922, requires the appellee to purchase and pay for 62 1/2 shares of said stock. The oral contract required said number of shares of stock to be delivered to the appellee in part payment of his services. The written contract required the appellee to purchase and pay for the same number of shares of stock. This latter required payment in money. The written contract is complete in itself, and the attempt to show that the payment for the said shares of stock therein provided for was to be by services or in some other way than as expressed in said written instrument--that is, by an oral agreement--is, we think, clearly in contravention of the parol-evidence rule. Witthauer v. Wheeler, 172 Iowa 225, 150 N.W. 46; Blackledge v. Puncture Proof Retread Co., 190 Iowa 1303, 181 N.W. 662; Edwards v. Wagner, 191 Iowa 822, 183 N.W. 450; Jones v. Sargent, 193 Iowa 1256, 188 N.W. 818; Griffey v. Lubben, 196 Iowa 465, 193 N.W. 410; Cady v. Lyman, 198 Iowa 661.

The appellee was entitled to go to the jury on the question of his right to receive 62 1/2 shares of stock from the appellant under his oral contract of September 15, 1922, as part payment of his commission, and the appellant was entitled to recover upon its counterclaim under the written contract of October 25, 1925, for the 62 1/2 shares of stock which the appellee agreed by said contract to purchase, and for which he has not paid.

II. In one count of his petition the appellee claimed that, on or about the 15th day of September, 1922, he entered into an oral contract with the appellant, determining the amount...