Gordon v. Witthauer

• Decision Date: 14 December 1965
• Docket Number: No. 51835,51835
• Citation: 138 N.W.2d 918,258 Iowa 617
• Parties: Leo D. GORDON, Appellee, v. Owen WITTHAUER and Marguerite A. Witthauer, Appellants.
• Court: Iowa Supreme Court

Page 918

138 N.W.2d 918

258 Iowa 617

Leo D. GORDON, Appellee, v. Owen WITTHAUER and Marguerite A. Witthauer, Appellants.

No. 51835.

Supreme Court of Iowa.

Dec. 14, 1965.

Rehearing Denied Feb. 8, 1966.

Kenneth Sacks, Council Bluffs, for appellants.

Matt Walsh, Council Bluffs, for appellee.

THORNTON, Justice.

Plaintiff, a tenant, brought this action against defendants, his landlords, for damages for breach of an express warranty that the landlords would install adequate heating and air conditioning equipment. The case was submitted to the jury on this theory and from an adverse verdict and judgment defendants appeal.

Defendants contend it was error to overrule their motion for judgment notwithstanding the verdict because the plaintiff's case was based on parol evidence which contradicted, varied or enlarged the written lease between the parties.

Plaintiff and defendants entered into a written lease dated August 31, 1962, for a term commencing October 1, 1962, to extend to October 1, 1967, for premises on which were located two connected buildings to be used for cafe and taproom only for a monthly rental of $400. The lease placed no burden upon the landlords other than to deliver possession of the premises and typed in at the bottom of the form lease was the following, 'Lessor's agree to connect two walk-in coolers, air conditioner and furnace.' There were 18 numbered paragraphs of various agreements on the part of plaintiff including, 'That lessee has examined said premises and accepts same in present condition.'

Plaintiff testified he paid the first months rent August 24th before the lease was signed and while the buildings were under construction, that defendant husband orally told him the air conditioning and furnace, a single unit, would be adequate for the premises, and that the unit cost $5,000 when in fact it cost $1,200, and he would not have signed the lease if it had not been so represented or warranted to him. There was ample evidence to sustain a finding the air conditioning and heating were inadequate. The record shows without dispute the reason for including the provision requiring lessors to connect the unit was because at that time it had not been connected.

The lessors' testimony shows they in fact installed two space heaters in the taproom, one in October, 1962, another in December, 1963, re-ducting work in connection with the furnace, a blower motor and return air drop in May, 1963, and a three ton air conditioner in the taproom in June of 1963. The evidence was such as to sustain a finding such work was performed by the lessors pursuant to complaints by the lessee.

Plaintiff originally filed his petition in August, 1963. Pursuant to court order his recast petition was filed September 15, 1964, in count I thereof he alleged defendant Owen Witthauer falsely and fraudulently represented the unit was adequate and as a result he was induced to sign the lease. At the close of his evidence he amended his petition by adding count III wherein he alleged that prior to the execution of said lease and collateral with its execution the defendant Owen Witthauer, 'expressly convenanted, agreed and/or warranted that he would install adequate heating and air-conditioning equipment' and, 'That plaintiff in reliance on these statements was induced to sign the lease at a rental of $400.00 a month.' As stated, this was the only theory submitted. The instructions required plaintiff to prove defendant expressly agreed to install adequate heating and air conditioning, that plaintiff relied thereon, the unit was not adequate, and damages.

Defendants' sole contention is the oral evidence is not admissible under the parol evidence rule.

The parol evidence rule is one of substantive law, in the absence of fraud, accident, mistake or ambiguity parol evidence is not admissible to contradict, vary or enlarge the terms of a written contract. The reason for the rule is that the parties have made their agreement, of which the written contract is evidence, and to permit additions or variances would be to change the terms of their agreement. Fidelity Savings Bank v. Wormhoudt Lumber Company of Ottumwa, 251 Iowa 1121, 1126, 104 N.W.2d 462, and citations.

Simply, it is to prevent fraud and prevent contracting parties from being charged with agreements not in fact made.

In support of the trial court plaintiff urges the lease was ambiguous. We do not find it to be so. Plaintiff's contention is the lease is ambiguous as to the type of equipment to be installed and what portions of the premises were to be heated and air conditioned. All defendants were required to do by the written lease was to connect the unit. It could not refer to any unit other than the one actually in the buildings. This is not of uncertain meaning.

An examination of our lease cases wherein oral evidence was offered to show a collateral agreement shows where the parol evidence is of an agreement which did not vary or affect any of the terms of the written lease, but was beyond and independent of it, it was admissible. Witthauer v. Wheeler, 172 Iowa 225, 231, 150 N.W. 46, 154 N.W. 423. In that case plaintiff leased from defendant, in writing, for two years a 2400 acre ranch only 200 acres of which was tillable, as a farm and stock ranch. The crop rent was fixed in the writing but no mention was made as to any agreement between the parties jointly conducting the business of stock raising, the parties to share equally in the increase of said...