Fralick v. Mercer

Decision Date24 May 1915
PartiesJ. G. FRALICK, Respondent, v. R. H. MERCER, Appellant
CourtIdaho Supreme Court

CONTRACT-DAMAGES-PLEADINGS-AMENDMENTS-MOTION TO STRIKE-INSTRUCTIONS.

1. Where an action is brought on a written contract and as a defense the defendant pleads a contemporaneous oral agreement to the effect that it released him from a performance of the written contract, the court did not err in striking out such defense on motion.

2. The general rule is that a plea or answer setting up a parol contemporaneous agreement inconsistent with the contract sued on is bad on demurrer or may be stricken out on motion.

3. Held, that the court did not abuse its discretion in denying defendant's motion to amend his answer.

4. Held, that the court did not err in giving certain instructions and that the instructions given by the court correctly stated the rule for the measure of damages applicable in this case.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Action to recover damages for breach of contract. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

McFarland & McFarland, for Appellant.

Appellant had refused to sign the contract, and would not have signed it had not respondent agreed that he would not hold him to a strict fulfillment thereof, and promised that no action for damages would be brought for the nonfulfillment of the contract. Said promises of respondent were the consideration for appellant's executing the contract, and are not in the nature of an oral agreement tending to vary or change the terms or conditions of a written agreement. (17 Cyc. 638 et seq.)

"Parol evidence is admissible to show that an instrument was never intended by the parties to become operative as a valid binding obligation." (9 Ency. Evidence, 335.)

This oral agreement does not in any sense conflict with the contract, nor does it vary, contradict or change the terms of the contract, because nothing is mentioned in said contract in regard to damages. There may be an independent oral agreement as to matters on which the written contract is silent, and which is not inconsistent with its terms. (9 Ency. Evidence, 350 D.)

Parol evidence is admissible to show the rescission of a contract in writing by a subsequent parol agreement between the parties thereto. (9 Ency. Evidence, (5) 359; 9 Cyc. 597 598.)

This court has more than once held that great liberality must be exercised in the allowance of amendments to pleadings. (Kroetch v. Empire Mill. Co., 9 Idaho 277, 74 P 868; Dunbar v. Griffiths, 14 Idaho 120, 93 P. 654.)

Ezra R Whitla, for Respondent.

The written contract provides explicitly for the delivery of 50,000 ties; the defendant sets up a contemporaneous parol agreement that he did not have to deliver this number of ties. The parol contract is not only inconsistent with the written contract, but absolutely abrogates it.

"A plea or answer setting up a parol contemporaneous agreement inconsistent with the written contract in suit is bad on demurrer." (9 Cyc. 733; Fitzgerald v. Burke, 14 Colo. 559, 23 P. 993; Fort Scott Coal & Min. Co. v. Sweeney, 15 Kan. 244; Thisler v. Mackey, 65 Kan. 464, 70 P. 334; Jacobs v. Shenon, 3 Idaho 274, 29 P. 44.)

This is the universal rule and is sustained by all the authorities. (Merrill v. Young, 5 Kan. App. 761, 47 P. 187; Daly v. Kimball Co., 67 Iowa 132, 24 N.W. 756; Kinnard Co. v. Cutter Tower Co., 159 Mass. 391, 34 N.E. 460; Davis v. Robinson, 71 Iowa 618, 33 N.W. 132; Engelhorn v. Reitlinger, 122 N.Y. 76, 25 N.E. 297, 9 L. R. A. 548; Wheaton Roller Mills Co. v. John T. Noye Mfg. Co., 66 Minn. 156, 68 N.W. 854; Ryan v. Cooke, 172 Ill. 302, 50 N.E. 213; Lilienthal v. Suffolk Brewing Co., 154 Mass. 185, 26 Am. St. 234, 28 N.E. 151, 12 L. R. A. 821.)

The question of permission to amend a pleading, especially during the trial of a case, is always entirely within the discretion of the trial judge, and unless it appears clearly that that discretion has been abused, his ruling thereon will not be reviewed or interfered with. (31 Cyc. 368; Anthony v. Slayden, 27 Colo. 144, 60 P. 826; Lowe v. Long, 5 Idaho 122; 47 P. 93; Small v. Harrington, 10 Idaho 499, 79 P. 461.)

Defendant's proposed amendment came too late to allow him to interpose the same, as to be allowed or permitted to amend at this time would certainly have been a case of great injustice against the plaintiff. (Garrison v. Goodale, 23 Ore. 307, 31 P. 709.)

Where an amendment is sought after the trial is commenced the party asking to amend should make a good and sufficient showing as to why the amendment was not made sooner, and in the absence of such showing the disallowance of the amendment is no ground for complaint. (Phenix Ins. Co. v. Stocks, 149 Ill. 319, 36 N.E. 408; Phenix Ins. Co. v. Caldwell, 187 Ill. 73, 58 N.E. 314; Loverin-Browne Co. v. Bank of Buffalo, 7 N.D. 569, 75 N.W. 923; Dublin v. Taylor B. & H. R. Co., 92 Tex. 535, 50 S.W. 120.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to recover from the defendant, who is appellant here, the sum of $ 1174.06 damages for an alleged breach of a written contract to furnish a certain number of railroad ties. The written contract declared on was attached as an exhibit to the amended complaint and made a part thereof.

By the answer the defendant virtually admitted that he entered into a contract with the respondent to furnish him a certain number of railroad ties at certain prices, and admitted that he signed the contract set forth as an exhibit to the complaint, and avers that said contract was presented to him by the respondent and he (the appellant) kept it in his possession without signature for about three weeks, when the respondent inquired of him what he had done with it and why he had not signed and returned it to him, and appellant replied that he had not signed the contract and did not intend to do so, because he could not furnish the ties therein mentioned at the prices therein stated; that thereupon respondent stated to appellant that he need not furnish all of the ties mentioned in said contract, but that it would be satisfactory if he would furnish as many as he was able to and could furnish, and requested appellant to sign said contract, and thereupon appellant stated to respondent that he would sign the contract and furnish all of the ties he could for the prices mentioned in the contract, but would not furnish all of them, provided there would be no damage suit brought by respondent against appellant for failure to furnish all of the ties mentioned in said contract. Thereupon respondent promised and agreed that there would be no damage suit brought by him against appellant by reason of his failure to furnish all of the ties called for by said contract, and that appellant could furnish just such number of ties as he saw fit under said contract. Thereupon appellant signed said contract as of the date it was prepared and thereafter delivered to respondent a part of the 50,000 ties called for by said contract.

On motion of respondent this affirmative defense was stricken out. The case was thereafter tried to a jury and during the trial counsel for appellant stated to the court that he desired to submit an amendment to his answer. Thereupon the court advised appellant's counsel to prepare the amendment at the noon hour and submit it in writing. Upon the convening of court, after the expiration of the noon hour, appellant presented to the court an amendment to his answer, and asked that the same be substituted in lieu of paragraph 1 of said answer, which had been stricken out. The proposed amendment to the answer, in addition to incorporating therein the written contract referred to in the answer and all of the affirmative matters theretofore stricken out by the court on motion of counsel for plaintiff, contained the further allegation that after the verbal agreement had been entered into between the respondent and appellant concerning the signing of the contract, and after appellant had proceeded to furnish some of the ties to respondent, appellant and respondent agreed that appellant should not furnish any other or further ties under said agreement than those already furnished. The court thereupon refused to allow said amendment.

The case was thereafter tried to a jury and a verdict was entered in favor of the plaintiff for the sum of $ 1,123.78, and judgment was entered for that amount. This appeal is from the judgment.

Several errors are assigned which refer to the action of the court in sustaining respondent's motion to strike out appellant's affirmative answer and defense, and in refusing to allow appellant to amend his answer, and in giving and refusing to give certain instructions.

The first question presented is as to the action of the court in striking out defendant's affirmative defense. In that affirmative defense was set up a contemporaneous oral agreement made prior to the signing of said contract, whereby it was agreed that the defendant need not comply with his part...

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