Kindley v. Williams
| Decision Date | 13 April 1956 |
| Docket Number | No. 9518,9518 |
| Citation | 57 A.L.R.2d 1070,76 N.W.2d 227,76 S.D. 225 |
| Parties | , 57 A.L.R.2d 1070 Wendell E. KINDLEY, Plaintiff and Respondent, v. Francis R. WILLIAMS, also known as F. R. Williams, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Robert W. Gunderson, Rapid City, for defendant and appellant.
Whiting, Lynn & Freiberg, Rapid City, for plaintiff and respondent.
Plaintiff brought this action to recover damages for the conversion of an airplane. The jury returned a verdict for plaintiff and defendant has appealed.
Viewed in the light of the verdict of the jury the evidence discloses that on February 25, 1954, plaintiff and defendant entered into the following agreement:
'Agreement
'This agreement made February 25th, 1954, between Dr. F. R. Williams of Rapid City, South Dakota, and Wendell E. Kindley of Sioux Falls, South Dakota, witnesseth:
'Whereas, Williams has delivered to Kindley the following described airplane: One (1) new Beechcraft Bonanza serial number D-3699, license number N-3473-B, and with respect to which it is therefore agreed.
'1. Williams hereby leases the airplane to Kindley for a term of eighteen (18) months.
'2. Kindley shall pay to Williams as rental for the use of the airplane $927.85 per month payable on the tenth day of each month, the first payment to be made March 10, 1954, and a like amount thereafter on the tenth day of each month following. If such rental be not paid within ten days Williams shall have the right to recover immediately the possession of the airplane, terminate this least and retain all rentals theretofore paid.
'3. Kindley shall use the airplane in conformance with all requirements of state and Federal statutes and regulations and the airplane shall be based at Rapid City, So Dak.
'4. Kindley shall keep the airplane in good condition and shall make all repairs necessary for its good operation at his own expense.
'5. Williams shall insure the airplane against loss in such manner as he deems proper but Kindley at the end of this lease shall return the property in as good a condition as when received reasonable wear and tear excepted and Kindley shall save Williams harmless from any claim by reason of the operation of the plane.
'6. Kindley shall not pledge, loan, mortgage, sublet or part with the possession of the airplane or permit any liens to be incurred upon the airplane during the period of this lease.
'In Witness Whereof the parties have executed this agreement this 25 day of February, 1954.
'Wendall E. Kindley
'F. R. Williams M D'
However, at the time this lease agreement was entered into a separate agreement concerning this airplane was made by the parties. This agreement was substantially that the plaintiff pay to the defendant the sum of $8,500 and that this sum, together with the $927.85 monthly payments provided for in the lease for a period of 18 months, would be a complete payment for the airplane and vest the title thereto in the plaintiff. Plaintiff made the $8,500 payment and the first payment under the lease agreement but defaulted in the second payment. After this default defendant, without notice to the plaintiff, retook possession of the airplane. Within ten days after defendant retook possession of the plane and plaintiff made a tender of the amount due under the contract under the provisions of SDC 54.0218 but defendant refused to redeliver possession of the plane to plaintiff. Plaintiff then started this action to recover damages for the alleged conversion.
Respondent contends that the combined effect of the written agreement and the contemporaneous oral agreement constitutes a conditional sale within the meaning of our law. It is contended that the fact the written instrument refers to the payments as 'rental' is not conclusive, Pringle v. Canfield, 19 S.D. 506, 104 N.W. 223; that the determining factor is the intention of the parties as evidenced by the entire agreement. Universal Finance Corp. v. Hamner, 61 S.D. 540, 250 N.W. 33; Western Material Co. v. Deltener, 64 S.D. 62, 264 N.W. 207. Our present law defining a conditional sale found in SDC 54.0201 is cited, which in part provides:
'(2) Any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become, or have the option of becoming the owner of such goods upon full compliance with the terms of the contract.'
No doubt there is merit to these contentions if effect is given to both the written and oral agreements.
The difficult question is whether the written agreement may be supplemented by the contemporaneous oral agreement without varying the terms of the writing. The rule in this state is based upon SDC 10.0604 and is well stated in Farmers' Elevator Co. of Colton v. Swier, 50 S.D. 436, 210 N.W. 671, 673. '* * * where a contract which has been reduced to writing and executed by the parties is complete, clear, and unambiguous in its terms and contains mutual contractual covenants, or where the consideration consists of a specific and direct promise to do or not to do certain things, this part of the contract, in the absence of fraud, mistake, or accident, cannot be changed or modified by parol or extrinsic evidence, nor can new terms be added to the contract, nor to the contractual consideration therein expressed, nor, where all these facts exist, may a party to a contract show that he was induced to sign the contract by the making of a prior or contemporaneous oral agreement, where such showing would be tantamount to adding to or subtracting from the contractual consideration expressed in the written contract.'
We must keep in mind that the evidence discloses the negotiations between plaintiff and defendant related to a single subject, the airplane. These negotiations culminated in the written agreement set out above. The written agreement here involved is without question complete, clear and unambiguous. It is a lease and nothing else. The property is leased by the defendant to the plaintiff upon a monthly rental basis, and the agreement specifically provides that at the expiration of the lease plaintiff shall return to the defendant 'the property in as good a condition as when received reasonable wear and tear excepted.' These provisions of the written agreement are in opposition to any thought that the airplane was being sold to defendant or that plaintiff was 'bound to become, or have the option of becoming the owner of such goods upon full compliance with the terms of the contract.'
However, respondent contends...
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