D. R. Roof, Trustee v. Fred L. Jerd

• Decision Date: 11 May 1929
• Citation: 146 A. 250,102 Vt. 129
• Parties: D. R. ROOF, TRUSTEE v. FRED L. JERD
• Court: Vermont Supreme Court

146 A. 250

102 Vt. 129

D. R. ROOF, TRUSTEE v. FRED L. JERD

Supreme Court of Vermont

May 11, 1929

February Term, 1929.

Evidence---Application of Parol Evidence Rule---Principal and Agent---Authority of Agent---Jury Question.

1. Parol evidence rule does not exclude parol proof of a prior or contemporaneous oral contract that is independent of collateral to, and not inconsistent with written contract though it relates to same general subject-matter and grows out of same transaction.

2. In action by payee against maker on certain promissory notes given in part payment of purchase price of certain lots, oral statements to purchaser by vendor's agent who sold him lots, in presence of and within hearing distance of vendor, that if defendant would purchase such lots vendor would develop tract by building streets and sidewalks, sewers, and electric lights, heldnot inadmissible as varying written contract, since it did not affect such contract or impair its force, but merely showed an undertaking on vendor's part not shown by writing collateral to it and independent of it.

3. In such action, submission to jury of question of authority of person acting as agent of vendor for sale of lots to agree that, if purchase of certain lots were made by defendant, specified improvements would be made in tract by vendor, held without error.

4. Direct proof of authority of person acting as agent of vendor for sale of lots to make oral agreement with vendee, that, if he purchased certain lots, vendor would make specified improvements in tract, was not necessary in order to justify submission to jury of question of agent's authority in this respect, where jury might reasonably infer from evidence that he was authorized to make such contract, or could reasonably find that vendor had heard promises made by agent in his presence and remained silent, thus being estopped from denying agent's authority.

ACTION OF CONTRACT to recover on certain promissory notes. Plea, that notes were executed to defendant pursuant to a written contract for the purchase of lots, and that before such contract was executed plaintiff promised to make specified improvements on tract, if such lots were purchased by defendant, which agreement was breached; also, declaration in off-set for damages resulting from failure to make improvements specified. Trial by jury at the November Term, 1928, Orange County, Sherburne, J., presiding. Verdict on declaration in off-set for defendant to recover $ 400. The plaintiff appealed. The opinion states the case. Affirmed.

Judgment affirmed.

Fred B. Thomas and Ernest E. Goodrich for the plaintiff.

March M. Wilson and Raymond Trainor for the defendant.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

POWERS

The plaintiff was selling lots in an undeveloped tract of land called Oleander Park, situated about five miles north of Sarasota, Florida. He maintained an office in the city of Bradenton, in which were employed several clerks and assistants, among whom was E. D. Cameron. George Jerd, a brother and agent of the defendant, called at this office, and there met the plaintiff and Cameron, and was shown a blueprint of Oleander Park, laid out into streets, lots, avenues, and canals. Together with Cameron and one Mazzalini, George Jerd visited the park and looked over the lots. They returned to the office, and Cameron there promised and agreed that if Jerd would buy lots Nos. 42 and 43 on the print, Roof would develop the tract by building streets and sidewalks, and providing water lines, sewers, and electric lights. Roof was present in the office during this conversation, sitting at a desk some ten or fifteen feet away; and while it is not definitely shown that he heard it, it was a fair inference that he did, for he surely paid enough attention to it so that when the deal was completed, he came over and congratulated the fortunate buyer. Relying upon Cameron's promises, George Jerd bought the two lots above mentioned in the name of the defendant for $ 2,800. The latter has paid one-half of this sum, and given notes for the balance. The improvements promised by Cameron have never been made.

The plaintiff brought suit on the notes, and the defendant declared in offset for damages resulting from the failure to make the improvements specified. He recovered thereunder a balance of $ 400, and the plaintiff excepted.

The case, it will readily be noticed, differs from Citizens' Savings Bank & Trust Co. v. Paradis & Sons, Ltd. Inc., 102 Vt. 114, 146 A. 3, in that the parol contract here involved did not relate to the notes given, but to the development of the whole tract. The validity of the notes was not here called in question; the amount due thereon was not disputed. An offset was asserted. The evidence of the contract made by Cameron in behalf of the plaintiff was wholly parol, and was objected to on the sole ground that it was inadmissible under the parol evidence rule.

Though this rule is very familiar to the courts, in applying it and its so-called exceptions, they have been much perplexed and have reached conflicting results. Sure it is, that the rule does not exclude parol proof of a prior or contemporaneous oral contract that is independent of, collateral to, and not inconsistent with the written contract, though it relates to the same general subject-matter and grows out of the same transaction. Green v. Randall, 51 Vt. 67, 71; Buzzell v. Willard, 44 Vt. 44, 48; Cook v. Littlefield, 98 Me. 299, 56 A. 899, 901; 10 R. C. L. 228. It all depends upon how closely the oral contract is bound to the writing. Williston, Contracts, § 637. It is said, too, that the policy of the acting court is for consideration. Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646. Our own cases, as will hereinafter appear, have been very liberal in construing the rule.

That the agreement relied upon by ...