Foot Schulze & Co. v. Skeffington

• Decision Date: 27 February 1925
• Citation: 52 N.D. 307,202 N.W. 642
• Court: North Dakota Supreme Court
• Parties: FOOT SCHULZE & CO. v. SKEFFINGTON et al.

52 N.D. 307

202 N.W. 642

FOOT SCHULZE & CO.

v.SKEFFINGTON et al.

Supreme Court of North Dakota.

Feb. 27, 1925.

Syllabus by the Court.

If in the examination of a witness the purpose and purport of the testimony sought to be elicited are apparent and on objection thereto the ruling of the court is that no case or defense can be made on the theory on which the testimony is offered, then no further offer of proof is necessary in order to enable the proffering party to test the propriety of the ruling on appeal.

In a suit brought on a written contract of guaranty which, among other things, recites that “it is mutually understood and agreed that this guaranty shall be binding on every party who signs it, whether same be signed by any other person or not,” evidence of a contemporaneous parol agreement, that such writing was not to be delivered and effective as a contract unless and until a third party should sign the same, is not objectionable as tending to vary and contradict the terms of a written instrument.

Appeal from District Court, Ransom County; Geo. M. McKenna, Judge.

Action by Foot Schulze & Co. against L. T. Skeffington, J. S. Bixby, and another, on a written contract of guaranty. From a judgment for plaintiff, defendant last named appeals. Reversed and new trial ordered.Kvello, Adams & Rourke, of Lisbon, for appellant.

F. J. Graham, of Ellendale (John J. Corbett, of St. Paul, Minn., of counsel), for respondent.

NUESSLE, J.

This case involves the application of the so-called “parol evidence rule.” The question for determination arose in this wise: The plaintiff brought the action to recover on a written contract of guaranty known in the record as “Exhibit A.” Among other things, this writing provided:

“It is mutually understood and agreed that this guaranty shall be binding on every party who signs it, whether same be signed by any other person or not.”

In his answer the defendant Bixby alleged:

“That on or about the 16th day of January, 1922, he signed the paper set out in plaintiff's complaint as Exhibit A, but denies that the same was ever delivered to plaintiff, and in that connection says that at and before the execution of said paper by this defendant, plaintiff agreed with this defendant that the same should not be delivered and should not take effect nor become operative in any event unless it was signed by one P. A. Suhumskie, who was a director with the other defendants herein in the corporation Lisbon Farmers' Co-operative Company, and that the plaintiff then and there agreed with this answer defendant that said instrument Exhibit A would not be delivered and would not take effect or have any force or virtue until and unless the same was also signed by the said P. A. Suhumskie; that the said instrument never was signed by the said P. A. Suhumskie, although plaintiff thereafter sought to secure his signature thereto, and that the said P. A. Suhumskie refused and still refuses to sign the same; that by reason thereof the condition upon which said instrument was to become operative never occurred and the said instrument Exhibit A never was delivered to plaintiff and never went into effect, and this answering defendant is not bound thereby.”

The issue as thus made came to trial to a jury. The instrument Exhibit A, after proper preliminaries, was offered and received in evidence, and after making a prima facie case, the plaintiff rested.

The defendant in support of his defense, as outlined by that portion of the answer heretofore quoted, was called to the stand, and after preliminary questions was interrogated as to the conversation had at the time the instrument Exhibit A was signed by him. To this question the plaintiff objected on the ground that it was an attempt to vary the terms of a written instrument by parol testimony. The objection was sustained. The defendant thereupon stated that he had no further or other testimony to offer and stipulated that judgment might be entered against him subject to his right to appeal. Judgment was thereupon entered and the defendant perfected this appeal therefrom.

On argument before this court and for the first time, the point was made that, by reason of the general nature of the question to which plaintiff's objection was sustained and the failure of the defendant to make an offer of proof foreshadowing, for the benefit of the court and opposing counsel, what he expected to establish by the testimony thus objected to, the defendant cannot complain of the ruling. The plaintiff relies on numerous decisions of this court holding that where an objection to a question is sustained and the proffering party makes no offer of proof, he is not in a position to test the propriety of the ruling on appeal.

[1] In the early case of Halley v. Folsom, 1 N. D. 325, 48 N. W. 219, the rule was stated thus:

“Where an objection is sustained to a question propounded to a witness, and the competency of the question is not apparent on its face, the party must offer to prove the facts sought to be elicited before he can assign error upon the ruling upon the objection.”

This rule was approved in the cases of Madson v. Rutten, 16 N. D. 281, 113 N. W. 872, 13 L. R. A. (N. S.) 554;Bristol et al. v. Skapple et al., 17 N. D. 271, 115 N. W. 841;State v. Schonberg, 24 N. D. 532, 140 N. W. 105;Montana Ry. Co. v. Lebeck, 32 N. D. 162, 155 N. W. 648;Farmer v. Holmes, 35 N. D. 344, 160 N. W. 143. See, also, 3 C. J. 825, and cases cited at note 53. But the rule is subject to the exception that if the purpose and purport of the testimony sought to be elicited are apparent, and the ruling of the court is that no case or defense can be made under the theory on which the testimony is offered, then no offer of proof is necessary. See Brundage v. Mellon, 5 N. D. 72, 63 N. W. 209;Bates v. Lumber Co. (C. C. A.) 295 F. 1; 3 C. J. 827.

We think that in the instant case there could be no doubt in the mind of either counsel for the plaintiff or of the court as to the defense relied upon by the defendant; nor that the question objected to was intended to open the way to establish that defense. This conclusion seems irresistible. The defense was clearly stated in the answer. There could be no mistaking the theory under which it was formulated. The defendant sought to elicit evidence in support of that defense. The plaintiff objected to the inquiry on the ground that it was an attempt to vary the terms of a written instrument by parol testimony. The court after sustaining the objection said, in explanation of his ruling:

“The court is of the opinion that the defense which Mr. Bixby wishes to offer was not available to him in this case because of the peculiar reading of the contract itself. The contract reads that it is mutually understood and agreed that this guaranty shall be binding upon every party who signs it, whether the same was signed by any other person or not. Now, that being in the contract at the time Mr. Bixby signed it, he cannot come in now and get relief, and that is the view of the court.”

Under the circumstances, the case was clearly within the exception, and no offer of proof was necessary.

We are brought, then, to the consideration of the question as to whether the ruling of the court in sustaining the objection to the defendant's line of...