Hanes v. Mitchell, 7254
| Decision Date | 22 October 1951 |
| Docket Number | No. 7254,7254 |
| Citation | 49 N.W.2d 606,78 N.D. 341 |
| Parties | HANES v. MITCHELL. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Section 9-0607 RCND 1943 is a legislative enactment, in part, of the parol evidence rule.
2. The so-called parol evidence rule is neither a rule of evidence nor of interpretation, but rather one of substantive law.
3. Where a written contract is complete, clear and unambiguous and contains mutual and contractual covenants, or the consideration consists of a specific, direct promise to do or not to do certain things, its provisions cannot be changed by parol in the absence of fraud, misconduct or accident. Allgood v. National Life Insurance Co., 61 N.D. 763, 240 N.W. 874.
4. A party who is without physical or mental handicap and who voluntarily signs a brief, simple and unambiguous contract without reading it and his only excuse is that he was busy with other matters and signed the contract hurriedly is not entitled to introduce parol evidence tending to contradict or vary the terms of the contract on the ground that his ignorance of its contents constituted a mistake of fact.
E. J. McIlraith, Minot, attorney for defendant and appellant.
Herigstad, Pringle & Herigstad, Minot, for plaintiff and respondent.
This is an action upon a written contract involving the sale by the defendant to the plaintiff of a lot in the City of Minot, North Dakota, on or about July 5, 1949. The purchase price of $1,500 was paid. The plaintiff's complaint alleges that as a part of the consideration the contract provided:
'And Whereas the purchase price of $1,500.00 for said property includes the installation of sidewalk, curb and gutter on the street side of the said premises,
'Now Therefore, in consideration of the said purchase price for said premises, receipt whereof is hereby acknowledged by the Party of the second part, It is mutually agreed that the second party shall pay all costs in connection with the installation of said sidewalk, curb and gutter along the front of said premises, which installation is at present being made, the said payment to be made as soon as the cost can be ascertained at the office of the City Auditor of Minot.'
This contract was witnessed by two witnesses and signed by the plaintiff as party of the first part and by the defendant as party of the second part. The plaintiff then alleges that the defendant failed and refused to pay the cost of installing the sidewalk, curb and gutter as provided by the contract, and that the plaintiff paid therefor the sum of $501.92, which he seeks to recover.
The defendant, by his answer, admits the sale and purchase of the lot for $1,500, and denies other allegations of the complaint. He specifically denies that he agreed to pay for the construction of the curb, sidewalk and gutter along the front of the premises and alleges that he was to pay only for the excavation work that was then being done in connection with the construction of the curb and sidewalk, and that he has paid for this excavation the sum of $45. He further alleges that the plaintiff hired an attorney to draw up the agreement upon which the action is brought, and that upon being urged to do so by the plaintiff, the defendant, after first remonstrating that he was too busy to sign the instrument, went to the attorney's office 'and signed the said 'Exhibit 'A' without reading the same assuming of course that the same contained the actual agreement as made between the Plaintiff and Defendant at the time of the sale of said property.' The defendant also alleges that the contract was signed by him under a mistake of fact as to its contents and under a mistake of law as to its significance.
The case was tried to a jury who were instructed that since the execution of the contract was admitted, the jury should render a verdict for the plaintiff for such amount as they would find due him under the instructions and the evidence. A verdict was rendered for the full amount claimed by the plaintiff. The defendant moved for a judgment notwithstanding the verdict or in the alternative for a new trial. This motion was denied. The defendant appeals from the order denying his motion and from the judgment entered on the verdict.
The defendant under cross-examination freely admitted that on the fifth day of July, 1949, he owned the lot in question, which he sold to the plaintiff for $1,500. He admitted his signature upon the contract. The plaintiff then proved that there was assessed against the property the sum of $501.92 for the construction of curb, sidewalk and gutter, which amount the plaintiff paid in full.
The defendant sought to prove a conversation had on July 3, 1949, between the plaintiff and defendant about the prospective purchase of the lot. An objection to this conversation was sustained. The defendant then made an offer of proof, the substance of which was that the oral negotiations of July 3 were to the effect that the defendant would pay for the excavation for the sidewalk, curb and gutter an amount of not more than $45 and that the defendant had entered into an agreement with the City of Minot to build a curb gutter and sidewalk in front of the property, the cost of which would be assessed against the property and paid for over a period of years. The attorney for the defendant further stated: 'Defendant also offers to prove by this witness that the plaintiff employed an attorney to draw up Plaintiff's Exhibit '1', and that defendant was asked by the plaintiff while in his place of business in Minot, North Dakota, to come to the attorney's office and sign said agreement; that this defendant went to said attorney's office and signed said agreement without reading the same and received a copy thereof; that the next day thereafter this defendant read his copy of Plaintiff's Exhibit '1' and upon discovering that it did not contain the terms of the contract and agreement as entered into between the plaintiff and defendant he immediately protested to the plaintiff and his said attorney, both of whom refused to do anything about it and the plaintiff merely stating that he had signed the contract and it was in writing.'
The trial court persisted in his refusal to permit the defendant to establish the matters set forth in his offer of proof. This the defendant claims is error and upon it he seeks a reversal in this court.
Section 9-0607 RCND 1943 provides: 'The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.' This is a legislative enactment, in part, of the parol evidence rule. This rule is stated in the Restatement of the Law of Contracts, Volume 1, Section 237, as follows: 'Except as stated in Sections 240, 241 the integration of an agreement makes inoperative to add to or to vary the agreement all contemporaneous oral agreements relating to the same subject-matter; and also, unless the integration is void, or voidable and avoided, all prior oral or written agreements relating thereto.' This is not an evidentiary or interpretive rule, but rather one of substantive law. Allgood v. National Life Insurance Co., 61 N.D. 763, 240 N.W. 874; Williston on Contracts, Revised Edition, Volume 3, Section 631.
The defendant concedes the rule but insists that this case comes within an exception and points to a passage from DeRue v. McIntosh, 26 S.D. 42, 127 N.W. 532, which this court quoted in Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592, 596, wherein it is said: "And one of the exceptions seems to be that agreements or representations made prior to the written contract under which the party was induced to sign the contract may be shown; in other words, where the parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms part of the consideration for a written contract, and where he executed the written contract upon the faith of the parol contract or representations, such evidence is admissible." This language has been considered in subsequent cases by both this court and the Supreme Court of South Dakota. It was considered at length in Gilbert Manufacturing Co. v. Bryan, 39 N.D. 13, 166 N.W. 805, 808. After discussing the facts in the South Dakota case, this court said: ...
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