Lilienthal v. Cartwright

• Decision Date: 18 October 1909
• Docket Number: 1,664.
• Parties: LILIENTHAL et al. v. CARTWRIGHT.
• Court: U.S. Court of Appeals — Ninth Circuit

173 F. 580

LILIENTHAL et al. v. CARTWRIGHT.

No. 1,664.

United States Court of Appeals, Ninth Circuit.

October 18, 1909

J. N Teal and Wirt Minor, for plaintiffs in error.

M. L Pipes, J. K. Weatherford, and John R. Wyatt, for defendant in error.

On March 7, 1902, the plaintiffs in error, who were plaintiffs in the court below, entered into two contracts with the defendant in error, defendant in the court below, by the terms of which the latter agreed to complete the cultivation of about 35 acres of land in Harrisburg, Or., and harvest cure, and bale the hops grown thereon for the two years of 1903 and 1904, and deliver the same to the plaintiffs between the 1st and 31st days of October of the respective years at the agreed price of 10 cents per pound. Each contract provided for the delivery of 30,000 pounds of hops grown on the premises described, and such hops should not be the product of fuggle vines, nor a first year's plainting, etc. In 1903, and again in 1904, plaintiffs offered to perform their part of the contracts for the respective years by tendering payment therefor; but the defendant refused to perform his part of the contracts by the delivery of the hops. Thereafter plaintiffs brought two separate actions against the defendant to recover in each case damages for breach of the particular contract.

The defense in each case, as set up in the answer, was that after the contract was made, on the 7th day of March, 1902, 'the plaintiffs represented and agreed to and with the defendant that if the defendant should sell the premises, or any part thereof, described in the said contract, that the said contract should be and become void and inoperative as to the land so sold, and then and there agreed with the defendant that he might sell the said lands described in the said contract, and that the defendant would be released by the said sale from any obligation to the plaintiffs under or by virtue of said contract. ' The defendant sold the farm in question on the 8th day of November, 1902, and did not thereafter cultivate the same, or raise any hops thereon, or have any interest in the crops that were raised thereon, and did not deliver any hops to the plaintiffs. It was alleged in the defendant's answer that plaintiffs ought not to be permitted to allege that the contracts described in the complaint were either of them in force at any time after the 8th day of November, 1902, or to allege or prove that the defendant was obliged, under the terms of said contracts, to deliver to the plaintiffs the hops raised upon the said premises, or any part thereof, or to allege or prove that the defendant was guilty of any breach of the terms or provisions of said contracts, or to allege or prove that the plaintiffs had been damaged in any sum whatever by the alleged breach of said contracts relied on in the complaint.

The cases were by order of the court consolidated and tried together before the same jury, resulting in a verdict for the defendant in each case. In the course of the trial the court admitted testimony, over the objection of the plaintiffs, tending to show that with respect to a prior agreement between the parties, entered into in December, 1900, respecting the sale of hops, the agent of the plaintiffs told the defendant that the contract would be void or at an end if he sold his land. The court also admitted testimony, over the objection of the plaintiffs, tending to show that before and after the signing of the contracts on March 7, 1902, the agent of the plaintiffs told the defendant that if he sold his land that would end the contracts for the delivery of the hops.

Argued before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above). The errors assigned may be reduced to two questions-- the first relating to the admission of evidence tending to prove a statement alleged to have been made by the agent of the plaintiffs to the defendant in December 1900, at the time of making prior contracts for the sale of hops, to the effect that the contract (referring to the original contract) would be void or at an end if the defendant sold the land; and, second, relating to the admission of evidence tending to prove statements alleged to have been made by the same agent of the plaintiffs to the defendant, substantially to the same effect, made both before and after the contracts for the years 1903 and 1904 were executed on March 7, 1902. Both of these questions arise in the application of the common-law rule against the admission of parol testimony to vary the terms of a written contract. The rule in the state of Oregon, as it has been enacted into law, is in the following words:

'When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases.'

The exceptions are not material to the present case, and therefore need not be stated. With respect to the first question the court admitted the testimony to which objection was made, not as tending to vary any of the terms of the written contract, but for the single purpose of aiding the jury in determining the condition of the minds of the parties, or of the plaintiffs, and their disposition towards entertaining such a proposition, or assenting to consider the original contract void, should a sale of the premises be made by the defendant, and the testimony was so limited by the court in its instructions to the jury. The court said:

'I further instruct you that the written contract, in so far as it pertains to this controversy or has relation thereto, was concluded when the same was signed by Cartwright. All the terms of the contract were agreed upon at that time, and by concert of action of the parties reduced to writing, and when so formulated it is conclusively presumed to contain all that the parties intended to have introduced therein. No other agreement than such as is evidenced by the contract can the parties rely upon as being made prior to the time such signing was had.'

The court further instructed the jury with respect to this testimony:

'I have permitted testimony to go to you touching conversations that might have been had between the parties, relative to the disposal of the land by Cartwright, prior to the time when the contract was concluded. This should be considered by you, not as tending to vary any of the terms of the written contract, for it cannot be so varied, but for the single purpose of aiding you in determining the

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