Jensen v. McConnell Bros.

Decision Date06 December 1917
PartiesBENJAMIN JENSEN, Appellant, v. MCCONNELL BROTHERS, a Copartnership, JOHN R. MCCONNELL, FRANK A. MCCONNELL, SARAH M. ANDERSON and CORA A. ANDERSON, Respondents
CourtIdaho Supreme Court

PROMISSORY NOTE-PARTIAL FAILURE OF CONSIDERATION-CONTRACT OF RELEASE - ERRONEOUS ADMISSION OF PAROL EVIDENCE TO VARY CONTRACT.

1. The payor of a promissory note complains to the payee of partial failure of consideration and thereafter, before the maturity of the note, enters into a written agreement with payee, whereby the time for payment of the note is extended, and which agreement contains the following stipulation: "In consideration of the foregoing extension of time for the payment of the said note, the party of the second part, as a copartnership and each and both firm members thereof both as copartners and individually, does and do hereby expressly waive satisfy, cancel, relinquish discharge, and surrender each, any, and all claims, offsets setoffs, counterclaims, choses in action, causes of action debts, remedies, or rights to money, property, damages, or legal or equitable relief that it, they, or either of them has or have against the party of the first part at the date of this agreement or at any time heretofore." Held, that in the absence of proof of imposition, fraud, duress, undue influence, mutual mistake or of unilateral mistake fostered by misrepresentation, the payor of such note may not prove an exception to such contract by parol, and it is error to admit oral evidence varying the legal effect of such contract.

2. A party will not be relieved from the terms of a written contract on the ground of mistake due to his negligence when it was within his power to have a stipulation inserted in the agreement which would have protected him fully. He is bound to assume any risk he might have provided against in the contract.

3. Held, that the trial court erred in refusing to instruct the jury to return a verdict for appellant and in refusing to set aside the verdict of the jury, and in entering a judgment for respondents.

[As to parol evidence to vary or add to a writing, see note in 56 Am.St. 659]

APPEAL from the District Court of the Seventh Judicial District, for the County of Canyon. Hon. Ed. L. Bryan, Judge.

Action to recover upon promissory note. Judgment for respondents reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

J. P. Reed and Jackson & Walters, for Appellant.

Where there is no confidential relation involved, a party is not entitled to have a contract set aside on the grounds of fraud, mistake or misrepresentation, if such party negligently sign the contract. (McNinch v. Northwest Thresher Co., 23 Okla. 386, 138 Am. St. 803, 100 P. 524; Kimmell v. Skelly, 130 Cal. 555, 62 P. 1067.)

A party will not be relieved of a contract on the grounds of mistake when it was in his power to have a stipulation inserted that would fully have protected him. (Elliott on Contracts, secs. 110, 192; Soley v. Jones (Mass.), 95 N.E. 94; Curtis v. Albee, 167 N.Y. 360, 60 N.E. 660.)

Where defendants in an action on a contract allege that they entered into the contract under a mistake, and there is no evidence that plaintiff knew that defendants had made such a mistake, there is no such mutual mistake as to defeat a recovery under the contract. (Crane v. McCormick, 92 Cal. 176, 28 P. 222; 9 Cyc. 394; Elliott on Contracts, sec. 112, p. 196.)

Where a release is general in its terms and there is no limitation by way of recital or otherwise, the releasor may not prove an exception by parol. The instrument itself is the only competent evidence of the agreement of the parties, unless avoided for fraud, duress or some like cause. (Elliott on Contracts, sec. 2061, p. 248.)

Where parties enter into a contract, reduce same to writing, and state the details therein, and it appears to be complete upon its face, the same cannot be defeated by showing a contemporaneous oral agreement not made after the execution of the contract, and there is no allegation of fraud or mistake in procuring the execution of the contract. ( Tyson v. Neill, 8 Idaho 603, 70 P. 790; Fralick v. Mercer, 27 Idaho 360, 148 P. 906; 9 Cyc. of Evidence, 331; Jacobs v. Shenon, 3 Idaho 274, 29 P. 44.)

Plaintiff was entirely within his right in asking for an instructed verdict in his favor; and where this right has been denied by the trial court, it should be restored to the plaintiff on appeal without the ordering of a new trial. (Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090.)

Finley Monroe and Scatterday & Van Duyn, for Respondents.

Plaintiff may introduce upon the trial evidence of any fact which contravenes or overcomes any new matter set up as a defense in the answer to the complaint, and the said rule applies to the answer to a cross-complaint. (Colton Land & Water Co. v. Raynor, 57 Cal. 588; Williams v. Dennison, 94 Cal. 540, 29 P. 946; Sterling v. Smith, 97 Cal. 343, 32 P. 320.)

Where a vendor of realty makes false representations of a material fact, it is not a good defense to an action by a vendee seeking to relieve that such representations were innocently made. (Kelly's Heirs v. Allen, 34 Ala. 663; Champlin v. Laytin, 6 Paige (N. Y.), 189; affirmed, 18 Wend. (N. Y.) 407, 38 Am. Dec. 382; Black v. Baskins, 75 Ark. 382, 87 S.W. 647; Crosby v. Meeks, 108 Ga. 126, 33 S.E. 913; Westerman v. Corder, 86 Kan. 239, Ann. Cas. 1913C, 60, 63, 39 L. R. A., N. S., 500, 119 P. 868; Watson v. Molden, 10 Idaho 570, 581, 79 P. 503.)

Relief is frequently given where terms are used or omitted which give the instrument a legal effect not intended by the parties and different from the contract actually made, ( Benson v. Markoe, 37 Minn. 30, 5 Am. St. 816, 33 N.W. 38; Dolvin v. American Harrow Co., 125 Idaho 699, 54 S.E. 706, 28 L. R. A., N. S., 785, 792.)

In order to establish mistake in an instrument, it is sufficient to show that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument, as executed, is insufficient to effect the object. (Leitensdorfer v. Delphy, 15 Mo. 160, 55 Am. Dec. 137.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This is an action on a promissory note. Respondents admit the giving of the note but deny that it has not been paid, and allege that it was given as a part of the consideration for the purchase of certain land and a water right, and in their cross-complaint, allege in substance:

That on or about the 31st day of May, 1911, they purchased from appellant certain lands and a water right; and as an inducement thereto appellant verbally represented to respondents that there was a good and sufficient water right for the irrigation of 250 acres of the land; that respondents relied upon the representations and purchased the land and water right; that appellant failed and neglected to furnish any water right, and respondents were compelled to, and did...

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