Gund v. Roulier

• Decision Date: 06 May 1922
• Docket Number: 21947
• Citation: 188 N.W. 185,108 Neb. 589
• Parties: FRED GUND, APPELLANT, v. DOLOR ROULIER, APPELLEE
• Court: Nebraska Supreme Court

188 N.W. 185

108 Neb. 589

FRED GUND, APPELLANT, v. DOLOR ROULIER, APPELLEE

No. 21947

Supreme Court of Nebraska

May 6, 1922

APPEAL from the district court for Franklin county: WILLIAM A DILWORTH, JUDGE. Reversed, with directions.

REVERSED.

Tibbets Morey & Fuller and George J. Marshall, for appellant.

A. H Byrum and Bernard McNeny, contra.

Heard before LETTON, DEAN and DAY, JJ., BLACKLEDGE and TEWELL, District Judges.

OPINION

TEWELL, District Judge.

This is an action brought to recover damages alleged to have been sustained on account of the failure of the defendant to deliver wheat as per the terms of a written contract, as follows:

"July 7, 1916. Contract No. 53. This is to certify that I have this day contracted and sold to Gund & Peterson bushels of wheat at 85 cents per bushel (lbs. per bushel) to be clean, sound and dry and to grade No. 2, to be delivered into their elevator or cribs at Campbell on or before the 30th day of Aug. 1916. If damaged or inferior grain is delivered and accepted on this contract, the market difference at which such grain is selling under the contracted grade day of delivery shall be deducted from the contracted price. I certify that this grain is in my possession and free of all liens and incumbrances. Dolor Roulier.

"Received of Gund & Peterson five dollars to apply on this contract. Dolor Roulier."

The answer is a general denial coupled with a plea that the written instrument sued upon was signed by the defendant under a verbal agreement that the same should be retained by the defendant for the purpose of securing the signature of Moise Roulier, a brother of defendant, who was then a joint owner of some wheat with defendant and that after said Moise Roulier signed said instrument the same should be signed by plaintiff before becoming effective as a binding contract. The answer also alleges that Moise Roulier refused to sign said instrument, and that the same was retained by the defendant, and never turned over to the plaintiff, and never signed by the plaintiff, and never became binding as a contract. The answer further alleges a tender of delivery of certain wheat raised by the defendant and said brother, such tender being later than the making of said writing, at 85 cents a bushel, and a refusal of the plaintiff to accept the same. The reply was a general denial. The cause was tried to a jury, and from a verdict and judgment in favor of the defendant the plaintiff has appealed.

The action was begun in the name of all members of the firm of Gund & Peterson, but later plaintiff, Fred Gund, was by assignment and order of court made sole party plaintiff.

It will be noted from the above statement of the case that the plea in the answer to the effect that the negotiations for sale never ripened into a contract and the plea of a tender of delivery on the contract and a refusal of acceptance are not consistent defenses. Further note that the blank space for inserting the number of bushels sold is not filled in. The evidence shows a state of facts differing materially from those pleaded in the answer. It is shown beyond dispute that the defendant signed the written instrument which is pleaded as a contract, and that a check for $ 5 was given the defendant by the plaintiff at the time of such signing. This check, which was never presented for payment, could not be located at the time of the trial, but the undisputed testimony of plaintiff is that there was written upon the check the words, "Advance on 4,000 bushels of wheat at 85 cents." The evidence also shows, beyond the point where reasonable minds could fairly differ, that a carbon was placed between two like sheets of paper prepared in book form for making contracts in duplicate like the one pleaded, and then the contract made by filling in blanks and by the signature of the defendant thereto, the original being given to the defendant and the carbon copy kept by the plaintiff. The plaintiff and witnesses Andy Peterson, Gottlieb Binder, and Fred Koch, all four testify that several days after the signing of the written instrument in suit the defendant made statements to the effect that he had sold 4,000 bushels of wheat to Gund & Peterson for 85 cents a bushel. The only evidence in support of the alleged verbal condition of the contract that the same should not be binding until signed by the plaintiff and Moise Roulier is that of the defendant himself, and the only fair construction that can be placed upon such testimony is that the written instrument took effect as a contract at the time of signing, but was to become void if not signed by Moise Roulier. This is clearly indicated, not only by the circumstances of the payment of the check for $ 5, but by the testimony of the defendant taken as a whole. Relative to the conversation which took place when the instrument sued upon was signed, the defendant was asked: "What was said about the proposition, in case Moise didn't sign it?" The answer was: "The contract I had entered into was to be void." While the answer is a mere conclusion of the witness, it is in keeping with the rest of his testimony concerning the transaction in which the instrument sued upon was made.

From the above statement of the pleadings and the evidence it will be seen that one of the principal questions involved is whether or not parol evidence is admissible in an action upon a written agreement to prove an alleged oral condition of the agreement not contained in the writing, to the effect that, unless some specified event happened, the agreement, although effective when signed, should become void. We conclude that the answer must be in the negative. The case of Stanley v. White, 160 Ill. 605, 43 N.E. 729, illustrates the rule involved quite clearly.

It is true that one of the necessary elements of every legal act is that it must be final in its utterance, and that the finality of a writing as a legal act...