Locke v. Murdoch.

• Decision Date: 16 July 1915
• Docket Number: No. 1715.,1715.
• Parties: LOCKEv.MURDOCH.
• Court: New Mexico Supreme Court

20 N.M. 522

151 P. 298

LOCKE

v.MURDOCH.

No. 1715.

Supreme Court of New Mexico.

July 16, 1915.

Syllabus by the Court.

Parol testimony cannot be received to contradict, vary, add to, or subtract from the terms of a valid written contract.

A valid written contract merges all prior and contemporaneous oral negotiations concerning the subject-matter embraced within the terms of the writing.

Parol evidence of a distinct, valid parol agreement, although prior to or contemporaneous with a written contract, is admissible unless it contradicts or varies the terms of the writing.

Where the terms of a written contract are silent as to the subject-matter of a parol contemporaneous agreement and the latter does not contradict the terms of the former and was the inducing cause for the execution of the written contract, proof of the contents of the parol contemporaneous agreement is admissible.

Courts of equity entertain jurisdiction of injunction cases, where one party to a contract seeks to restrain the other from carrying on a business or profession for a stated length of time which the party agreed not to carry on, on the ground that the parties cannot be placed in statu quo and that damages at law afford no adequate compensation to the injured party.

The findings of a trial court will not be disturbed where there is substantial evidence to support them.

A delay of ten months in asserting rights in a court of equity, under the circumstances of this case, does not constitute laches of such a nature as to deprive the party of equitable relief, especially where the trial court entertained jurisdiction of the cause in the first instance.

Admission of letters, their contents, and of conversations, written and had prior to the making of a written contract, introduced and received for the purpose of supporting the truth of a contemporaneous oral agreement, and not contradicting the terms of the written contract, are properly admitted.

Additional Syllabus by Editorial Staff.

A parol agreement to refrain from practicing dentistry, made at the same time a written contract for the sale of the dentistry business was made, is supported by a sufficient consideration.

A contract prohibiting a person from practicing dentistry in the town of S. for five years will not permit the opening of an office in S. for the treatment of patients outside of S.

Appeal from District Court, Colfax County; Leib, Judge.

Action by H. S. Murdoch against Seaon Locke. From a judgment for plaintiff, defendant appeals. Modified.

This is an action brought in the district court for Colfax county by appellee against appellant. The complaint alleged, substantially, that the parties hereto entered into a written contract on September 23, 1910, whereby appellant agreed to sell, and appellee to purchase, appellant's dental practice and certain office furniture in the town of Springer, in consideration of $300, payable in certain monthly installments; that at the same time appellant orally agreed that as a further consideration the appellant would execute a written contract not to open a dental office in the town of Springer for the purpose of practicing dentistry for a period of five years therefrom, when appellee had paid one-half of the purchase money for the sale of the said dental practice and office furniture; that, in pursuance thereof, appellee paid said one-half of the purchase price, and appellant thereupon executed, in writing, the agreement not to open an office in Springer for five years for the purpose of practicing dentistry therein; that appellee performed all the conditions of the last-mentioned contract on his part to be performed, but that appellant, in violation of said agreement, on April 23, 1912, opened a dental office for the purpose of practicing dentistry in Springer, and has continually since held himself out to the public as ready and willing to practice dentistry in Springer, and is now actually engaged in such practice at said place and threatens to continue therein, to the damage of appellee; that appellee has suffered irreparable injury which cannot be measured by a money judgment; that a multiplicity of suits will be necessary to protect the rights of appellee unless the court interferes by injunction; and that appellee has been damaged on account of said acts in the sum of $1,000. Appellant interposed a demurrer to the complaint. The grounds were that the alleged contract of March 23, 1911, was nudum pactum, unilateral, void, and without any consideration. The demurrer also alleged that the cause of action set out in the complaint was ambiguous and uncertain, in that three distinct contracts are therein referred to, and that appellee was not entitled to the relief demanded, or any other relief in equity. The demurrer was overruled. Thereupon appellant answered, denying the alleged oral agreement, admitting the execution of the contract of March 23, 1911, but setting up that the same was without consideration, and alleging by way of new matter that appellant performed all the conditions of his part agreed to be performed, but that appellee, after the making of the alleged contract of March 23, 1911, agreed, in consideration of the promise of appellant to cease making professional visits to the town of Wagon Mound, that the appellant might practice dentistry in Springer in so far as the same concerned persons desiring treatment from appellant. The case came on for trial before the court without a jury, and judgment making the temporary injunction permanent and awarding damages in the sum of $250 for appellee was rendered by the court. This is an appeal from that judgment.

The record discloses that appellee proved the case made by the pleadings. Appellee was a resident of Fredericktown, Mo., and came to Springer for the purpose of negotiating with appellant for the purchase of the latter's dental practice. An advertisement inserted by appellant in a dental magazine brought appellee and appellant together. Correspondence was had between the parties which contained representations by appellant that he had labored for 12 years over the dental chair and that he desired to leave Springer, after selling his practice and office furniture, but retain certain instruments used in his profession, but not for the purpose of practicing dentistry in Springer. Ultimately, a written contract was drawn by appellant and presented to appellee. But it contained no stipulation as to appellant ceasing the practice in Springer, and this fact was called to the attention of appellant by appellee. Thereupon appellant and appellee agreed that the appellant would execute in writing a stipulation to the effect that he would not practice dentistry in Springer for 5 years, or words to that practical effect, when appellant had been secured in the sale of his business and furniture by the payment of one-half of the purchase price. The contract of sale and purchase was then executed by the parties, the appellee relying upon the oral promise of appellant to execute the second contract. The first contract would not have been executed by appellee except for the said promise. Subsequently, half of the contract price was paid by appellee and the written agreement agreed to be executed by appellant was executed. But this agreement contained no recitation of a consideration. About April 27, 1912, appellant opened an office in Springer for the purpose of practicing dentistry therein and has since that time practiced dentistry in Springer. Circular letters and advertisements were introduced showing the fact that appellant was practicing dentistry in Springer in an office maintained by him and that he was holding himself out to the public generally as a dentist of Springer. There are other facts of some importance, but we deem it unnecessary to make a further statement of them.

A delay of ten months before suing to restrain the breach of a contract not to engage in the dentistry business in a town held, under the facts, not laches.

Francis C. Wilson, of Santa Fé, for appellant.

H. L. Bickley, of Raton, for appellee.

PARKER, J. (after stating the facts as above).

[1][2][3][4] 1. We discuss the questions presented by appellant according to their relative importance. The first and controlling question presented concerns the admission of certain evidence which appellant claims violates the rule that oral testimony cannot be admitted for the purpose of altering or changing the terms of a written instrument. The appellant contends, as we understand his brief, that the alleged promise of appellant to execute a written contract not to engage in the practice of dentistry in Springer for five years therefrom, made at the time of the execution of the contract of September 23, 1910, resting in parol in the first instance, cannot be proved, because such proof would tend to alter the terms of the contract of September 23, 1910. The appellee contends that the promise was collateral and independent of the written contract and constituted the inducement for the execution of the written contract, and, being such, is not violative of the rule contended for by appellant.

The contract of September 23, 1910, contains stipulations concerning the sale of appellant's practice and office furniture in Springer, but is silent as to the stipulation contained in the oral agreement.

The courts seem to agree that the question at bar presents a recurring difficulty, not because of the rule itself, but because of the application of the exceptions which appellee invokes.

The existence of the general rule cannot be controverted. Reynolds, Trial Evidence, § 74; 2 Page on Contracts, § 1189; 2 Elliott on Contracts, § 1671; Jones on Evidence (2d Ed.) § 434; and 4 Wigmore on Evidence, § 2425 et seq.

The exception to the rule which is invoked by appellee is equally well settled.

“The general rule under discussion is not violated by allowing parol evidence to be given of the contents of...