Grand Forks Lumber & Coal Co. v. Tourtelot
| Decision Date | 01 June 1898 |
| Docket Number | 6731 |
| Citation | 75 N.W. 901,7 N.D. 587 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Fisk, J.
Action by the Grand Forks Lumber & Coal Company against E. C Tourtelot. Judgment for plaintiff, and defendant appeals.
Affirmed.
Burke Corbet, for appellant.
Bosard & Bosard, for respondent.
We find no reversible error in this case. The action was for a balance due for fuel delivered by plaintiff to the Dual City Gas Company, but for which it was alleged tat the defendant promised and agreed to pay. There was no contest over the delivery of the fuel, but defendant denied any promise to pay. The jury found against him, and a new trial being refused, he appeals to this court. The case shows that the defendant was receiver of an insolvent bank, to which the Dual City Gas Company was indebted. It appears that the gas company had reached a point where it found it difficult, if not impossible, to continue business, by reason of its inability to meet its running expenses. In August, 1896 defendant had a conversation with Mr. Twamley, who was the president of the gas company, relative to its expenses. The gas company was then, and had been, purchasing fuel from plaintiff, but plaintiff had refused to deliver any more fuel unless satisfactory arrangements as to payment were made. The gas company at that time also required a car load of naphtha. After their matters had been talked over, a written contract was drawn up by which the gas company agreed at the end of each month to turn over to defendant its bills due from its customers for gas, and defendant agreed to pay for a car load of naphtha. Nothing was said in such written contract about procuring or paying for fuel. The naphtha was delivered, and defendant paid for the same.
Errors are assigned and argued upon the rulings relating to testimony. It was urged that no parol contract or agreement on the part of defendant to pay for the fuel could be shown because after the conversation between defendant and the president of the gas company a written contract was signed wherein defendant agreed to pay only for the naphtha, and did not agree to pay for the fuel. It is sought to apply the familiar rule that all prior parol statements and negotiations are superseded by the written contract, which is conclusively presumed to express the entire contract between the parties. But this is true only as to the particular matter contained in the contract. Revised Codes, section 3888. That defendant agreed in writing to pay for naphtha furnished to the gas company by an entirely distinct party certainly did not preclude plaintiff from proving that defendant at the same time agreed by parol to pay it for fuel furnished to such gas company. The two transactions were entirely separate. When the objection was taken at the trial the court stated that he would allow plaintiff to prove, if it could, an independent parol agreement, and certainly that was plaintiff's right. 17 Am. and Eng. Enc. Law, 443, and notes. It was claimed that this parole agreement was made about the last of August, 1896, and it is undisputed that the defendant paid the bills for fuel furnished to the gas company by plaintiff for the months of September and October following. It is also undisputed that defendant refused to pay for the fuel furnished from November 1st to December 19th. On this latter date the manager of plaintiff had a conversation with defendant, wherein he agreed to pay for the fuel that he might order from time to time, and thereafter he paid the bills for fuel as furnished on presentation. The action was to recover for fuel furnished from November 1 to December 19, 1896, except one load subsequently furnished, and inadvertently charged to the wrong party. When the manager of plaintiff was on the stand he was permitted to identify the bills for September and October,...
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