Henry v. Herschey
| Decision Date | 30 January 1904 |
| Parties | HENRY v. HERSCHEY |
| Court | Idaho Supreme Court |
WRITTEN INSTRUMENT-PAROL EVIDENCE-WHEN ADMISSIBLE.
1. Under the facts and circumstances of this case, held, that parol evidence is admissible to show that at the time of the execution of the written instrument one of the conditions specified therein had been previously complied with and fully satisfied.
2. Further, held, that the admission of intrinsic evidence showing that a condition named in the written instrument had been met by the party upon whom such condition was imposed is not a violation of the general rule which excludes parol evidence tending to vary or contradict the terms of a written contract.
(Syllabus by the court.)
APPEAL from the District Court in and for the County of Bingham. Honorable Joseph C. Rich, Judge.
Action by E. P. Henry against Frank Herschey to recover a balance on the purchase price of four hundred tons of hay. Judgment was entered in favor of plaintiff and defendant appealed. Affirmed.
Affirmed, with costs.
Reeves & Boyd, for Appellant.
Is the written instrument a contract and binding on the parties? If it is the contract of the parties, is the testimony admitted by the court properly admissible for any purpose under the law? We admit that a writing clearly unilateral, or lacking the elements of mutuality, is not an enforceable contract. But is the instrument set out herein within that class? We insist that it is not, but that all the necessary elements of mutuality are shown on its face and from the testimony. That an instrument signed by only one party may be the contract of both, we call the court's attention to the case of Bulwinkle v. Cramer, 27 S.C. 376, 13 Am. St. Rep 645, 3 S.E. 776; Mason v. Decker, 72 N.Y. 595, 28 Am. Rep. 190. A written instrument, even when signed by but one party, is not unilateral, but binding when acted upon by both parties. (Bloom v. Hazzard (Cal.), 37 P. 1037; Dows v. Morse, 62 Iowa 231, 17 N.W. 495; Muscatine Water Co. v. Muscatine Lumber Co., 85 Iowa 112, 39 Am. St. Rep. 284, 52 N.W. 108.) Under the contract set out the law is uniform that, whatever the prior negotiations or discussions may have been between the parties, all parol conversations and understandings are merged in the written instrument, and it is the only evidence admissible. (Dawson v. Woodhams, 11 Colo. App. 394 53 P. 238; Jacobs v. Shenon, 3 Idaho 274 (2 Idaho 1002), 29 P. 44.) Neither fraud nor mistake is attempted to be shown in this case, and no uncertainty or ambiguity appears from the writing itself, and, in the absence of these, the rule of evidence is elementary that oral testimony is inadmissible. (Haskins v. Dern, 19 Utah 89, 56 P 953, and cases cited; Stein v. Fogarty, 4 Idaho 702, 43 P. 681.)
F. S. Dietrich, for Respondent.
We respectfully submit that Barghoorn v. Moore, 6 Idaho 531, 57 P. 265, decided by this court, is directly in point. To be sure the instrument involved in that case did not have at the head of it the word "contract," and is in the form of a receipt at the beginning, instead of at the end, as in the case of exhibit 1 in this record (set out in the opinion); but the provisions contained in the instrument involved in the Barghoorn case are just as clearly agreements and have as many elements of a contract as have the provisions of exhibit 1. The instrument in that case, as set out in the opinion of the court, is as follows:
The single question involved in that appeal was as to whether or not parol testimony was properly received contradicting the terms of this instrument. The court says: "We think the evidence was proper. The contract between the parties was not reduced to writing; it was oral. In performing the contract, the defendant transferred the Idaho Builder's Supply Company's note to the bank, and gave her note for $ 3,000, which she afterward paid. She also to accommodate, without consideration, gave the bank the note sued on in this case, under promise of the president of the bank that it would not be collected, but used solely in making a showing of assets under the United States banking laws. The receipt quoted above was a memorandum signed by only one of the parties, and misrepresented some of the facts relating to the transaction between the parties. Such receipt did not preclude the parties from showing the contract made by them. (See, also, Lemmon v. Siebert, 15 Colo. App. 131, 61 P. 202; Anderson v. Portland Flouring Mill Co, 37 Or. 483, 82 Am. St. Rep. 771, 60 P. 839, 50 L. R. A. 235; Allen v. Tacoma Mill Co., 18 Wash. 216, 51 P. 372; Denver Brewing Co. v. Barets, 9 Colo. App. 341, 48 P. 834.)
The facts are stated in the opinion.
The facts of this case as disclosed by the record are substantially as follows: In the fall of 1897 the plaintiff had several stacks of lucerne hay in his field near Idaho Falls, in Bingham county, and, being desirous of selling the same, approached the defendant, who was at the time feeding a large number of sheep in that county, and proposed to sell him this hay. After some conversation over the matter they drove out to the field and the defendant made an examination of the hay and expressed himself as being satisfied with the quality and condition, and offered the plaintiff $ 2.50 per ton for the same, which proposition was thereupon accepted by the plaintiff. They estimated the hay at four hundred tons. At that time the plaintiff also told the defendant that there was a good feeding ground nearby where he could keep his sheep during the winter and feed them. After an examination of the location defendant concluded that it was a desirable place, and it was agreed that the hay as hauled from the stacks of the proposed feed-yards should be weighed at what was known in the community as Tautphaus' scales, located on the road between the haystacks and feeding grounds. After this agreement the defendant went away; and, while no one is positive, yet it seems that within two days thereafter he returned and found the plaintiff at one of the hotels at Idaho Falls and offered him $ 20 to release him from the contract. Plaintiff refused to do so, and thereupon defendant paid him $ 200 on the hay previously purchased, which payment was made upon the basis of an estimate of four hundred tons. After making this payment the defendant took a blank form from his pocket and inserted some words and erased others, saying to plaintiff: "Now, I don't want to enter into any ironclad contract in the sale of this hay," and asked him to sign the memorandum or receipt he had just filled out. Plaintiff thereupon signed the same, which is as follows:
Plaintiff...
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