Jarrett v. Prosser

• Citation: 23 Idaho 382,130 P. 376
• Parties: ADA E. JARRETT, Respondent, v. D. D. PROSSER et ux., Appellants
• Decision Date: 13 February 1913
• Court: Idaho Supreme Court

130 P. 376

23 Idaho 382

ADA E. JARRETT, Respondent, v. D. D. PROSSER et ux., Appellants

Supreme Court of Idaho

February 13, 1913

CONTRACT-EVIDENCE-CONTRADICTORY CONTRACT-VARIATION OF CONTRACT-FINDINGS.

1. Where parties have entered into a contract or agreement which has been reduced to writing, in the absence of fraud or mistake, if the writing is complete upon its face and unambiguous, parol evidence is not admissible to contradict vary, alter, add to or detract from the terms of the contract; but this rule does not apply where it appears from the evidence that the agreement was a mere informal memorandum, incomplete on its face and not intended by the parties to exhibit the whole agreement, but merely to define some of its terms. The writing is conclusive as far as it goes, but such parts of the actual agreement as are not embraced within its scope may be established by parol.

2. Evidence examined, and held to support the findings.

3. The findings examined and found to support the judgment.

APPEAL from the District Court of the Eight Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action to cancel a contract and permit its forfeiture and the retention of payments made under said contract. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

McFarland & McFarland, for Appellants.

"In the absence of fraud or mistake, parol evidence as to what the parties said before making an unambiguous contract is inadmissible to affect it." (Van Sant v Runyon, 19 Ky. Law Rep. 1981, 44 S.W. 949; Sims v Greenfield & N. R. Co., 102 Mo.App. 29, 74 S.W. 421; Cotton States Bldg. Co. v. Rawlins (Tex. Civ. App.), 62 S.W. 805; Coman v. Wunderlich, 122 Wis. 138, 99 N.W. 612; Tyson v. Neil, 8 Idaho 603, 70 P. 790.)

"It is an elementary principle that all prior oral agreements merge into the written agreement." (Morehead v. Davis, 13 Okla. 166, 73 P. 1103.)

"Principle and policy both forbid that written instruments made by the authority of law or by the contract of parties should be subject to be impeached, contradicted or annulled by loose, collateral parol testimony." (Cain v. Flynn, 4 Dana (Ky.), 499; Warren Glassworks v. Keystone Coal Co., 65 Md. 547, 5 A. 253.)

Black & Wernette, for Respondent.

Parol evidence may be admitted when the writing is incomplete. (Jones on Evidence, Ed. de Luxe, sec. 440; Morton v. Clark, 181 Mass. 134, 63 N.E. 409; Russell v. Pittsburg, N.E. & C. Ry. Co., 17 Pa. Super. Ct. 195; Pratt & Co. v. Frasier & Co., 72 S.C. 368, 51 S.E. 983; Sivers v. Sivers, 97 Cal. 518, 32 P. 571; Guidery v. Green, 95 Cal. 630, 30 P. 786; Savings Bank v. Asbury, 117 Cal. 96, 48 P. 1081; Pierce v. Edwards, 150 Cal. 650, 89 P. 600; Jones on Evidence, 2d ed., sec. 440, p. 553, and cases cited.)

STEWART, J. Sullivan, J., concurs.

OPINION

STEWART, J.

Ada E. Jarrett instituted this suit against D. D. Prosser and Mary Prosser, his wife, in the district court of Kootenai county, this state. The action was brought for the purpose of having a certain written contract, dated August 16, 1910, made between the respondent and the appellants, declared forfeited.

The action is based upon the following provisions of the contract:

"Witnesseth, That if the parties of the second part shall first make the payments and perform the covenants hereafter mentioned on their part to be performed, the said parties of the first part hereby covenant and agree to convey to the said parties of the second part in fee simple, free and clear of all encumbrances whatever by a good and sufficient warranty deed, the following described parcels of land situated in the county of Kootenai, state of Idaho, and known and described as follows: All that part of lot ten (10); sec. thirty-three (33), twp. forty-nine (49), N. Range one (1) W. B. M.; and all that part of lots three and five in section four (4) twp. forty-eight (48) N. range one (1) W. B. M. and lying west of the county road as now surveyed through said lots ten, three and five above mentioned and consisting of 64 acres, more or less; except and reserving therefrom one acre of land in lot three above mentioned, on which the schoolhouse now stands, said reservation to continue so long as said land is used for school purposes.

"And said parties of the second part hereby covenant and agree to pay to said parties of the first part therefor the sum of $ 3,600 in the manner following: $ 700 on the signing and delivering of this contract, and the further sum of $ 500 or more on the 16th day of August of each and every year hereafter until the balance of $ 2,900 shall have been fully paid, with interest at the rate of 6% per annum to be paid semi-annually on the balance remaining unpaid.

"Said parties of the second part further agree to pay all taxes and assessments that may legally be levied or imposed upon said land subsequent to the year 1910, it being hereby agreed that said first party shall pay the taxes on said land for the year 1910.

"And it is further agreed between the parties hereto that said first party shall, on or before the 1st of December, 1912, at the option of said second parties, give to said second parties a warranty deed of the land herein described, free from all encumbrances, and accept a mortgage from the said second parties on said land for any balance remaining unpaid under this contract.

"And it is further agreed between the parties hereto that if said second parties shall not desire or call for a deed of said premises with a mortgage back as in the paragraph above specified that said first parties shall procure, on or before the 1st day of December, 1912, a release of a certain mortgage, for $ 3,600 covering the premises herein described with other lands of said first parties, so far as the same shall cover the land herein mentioned.

"And it is further agreed that said second parties shall keep the dwelling house on the land herein described insured in the sum of $ 500 in some reliable insurance company, in favor of the first parties, during the life of the contract; and that they will, at all times, keep said lands and premises in good repair.

"And it is further covenanted and agreed between the parties hereto that time is, and shall be, of the essence of this contract; and in case of a default or failure of said parties of the second part to make the payments or any part thereof, or to perform any of the covenants on their part to be performed, this contract shall, at the option of the parties of the first part, be forfeited, and said parties of the first part may re-enter said premises and repossess the same and retain any, and all, payments made on this contract as liquidated damages for the non-performance of this contract.

"And it is further agreed between the parties hereto that the covenants and agreements contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties thereto."

The complaint alleges compliance with all the terms of the contract and noncompliance on the part of the defendants in the failure to pay $ 500 on August 16, 1911, or since that time; that the plaintiff has at all times been able to comply, and has complied, with all the terms of said written contract. The relief asked is, the right to re-enter the premises and that the defendants deliver up the possession of the property, and that plaintiff be declared to have the right to retain all payments made under said contract according to the terms of the contract, as liquidated damages for the nonperformance of the contract.

The defendants filed an answer and admitted the making of the contract of August 16, 1910, and denied plaintiff's compliance with the terms of the contract, and denied that the defendants had not complied with the terms of the contract, or that they did not pay the sum of $ 500, as provided for in the contract, on August 16th, 1911, or since that time, and denied that the plaintiff was able to comply, or has complied with any of the terms of the written contract; and as a further answer, and for affirmative relief, the defendants alleged affirmatively the execution of the contract, and that said contract was recorded on the records of Kootenai county on November 3, 1910, and that at the time that plaintiff and her husband entered into said agreement they were not in a position or able to give to defendants a clear title to the lands and premises, and that there were in full force and effect two certain mortgages against the lands and premises which then remained, and still remain, unpaid and unsatisfied, and that plaintiff and her husband could not convey a good and sufficient title to the premises without first liquidating and satisfying said mortgage; that at the time of the execution of said written contract and agreement the two mortgages remained of record in the office of the county recorder, one mortgage for the sum of $ 3,000 and the other for $ 600. These two mortgages are set forth in the answer.

It is also alleged in the answer that at the time of the execution of the contract of August 16, 1910, the defendants paid plaintiff $ 700, and since that time have also paid the taxes upon the lands and premises. It is then alleged that on or about September 11, 1911, the plaintiff and the defendants ascertained that plaintiff was not in possession or able to deliver a warranty deed conveying the premises, on account of the existence of the mortgages, and it was mutually agreed by and between the plaintiff and said defendants that instead of defendants making the payments to the plaintiff mentioned and specified in the contract, that the said defendants liquidate, pay and procure the satisfaction of said two mortgages, and that plaintiff should...