Mackin v. Darrow Music Co.
| Decision Date | 24 December 1917 |
| Docket Number | 8368. |
| Citation | 169 P. 497,69 Okla. 1,1917 OK 622 |
| Parties | MACKIN v. DARROW MUSIC CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the recital in the record showing the order of the trial court extending the time for making and serving case-made is "60-10-5 to make and serve case-made," such recital is commonly understood by the bench and members of the bar to mean 60 days given to appellant in which to prepare and serve a case-made, 10 days for appellee to suggest amendments, and 5 days' notice to be given by either side for the settling and signing of a case-made, and such recital of order extending time within which to make and serve case-made is sufficient.
While parol testimony is inadmissible to change or contradict the terms of a written contract, yet a parol contract may be made between the parties contemporaneously with the execution of the written agreement, providing it is separate and independent, and its terms in no way conflicting with or contradictory to the written stipulation. Thus, where the plaintiff sold to the defendant a piano at a stipulated price to be paid a certain amount down and the balance in installments, and the plaintiff retaining title to the same until the full amount was paid, the terms of the sale being evidenced by a written contract, it is competent for the defendant to show by parol evidence in an action for the balance due on the purchase price that the plaintiff and the defendant entered into a cotemporaneous parol agreement whereby it was agreed that the defendant might pay for the piano in hauling for the plaintiff, and that the plaintiff breached the parol agreement by refusing to furnish the defendant hauling as provided for in the parol agreement, as the parol agreement did not contradict or vary the written contract, except as to the manner of payment, which could be shown by parol.
Commissioners' Opinion, Division No. 8. Error from County Court, Tulsa County; J. W. Woodford, Judge.
Action by the Darrow Music Company against James Mackin. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Reversed and remanded, with directions to grant a new trial.
C. R Thurlwell and Samuel A. Boorstin, both of Tulsa, for plaintiff in error.
Fred W Kopplin, of Tulsa, for defendant in error.
This is an action commenced in the justice court of Tulsa county by the Darrow Music Company, defendant in error, against James Mackin, plaintiff in error, for the recovery of the possession of a certain piano or the value thereof. The parties will be referred to as they appeared in the trial court.
From a judgment in favor of the defendant, plaintiff appealed to the county court of Tulsa county, where the case was tried de novo to a jury, and the jury returned a verdict in favor of the plaintiff, the Darrow Music Company, against James Mackin, defendant, for the sum of $89.22 or for the return of the property sued for.
A motion for a new trial was filed by the defendant, which was overruled by the court, and the defendant appeals from the action of the court in overruling said motion for a new trial.
The piano involved in this action was sold to the defendant by the plaintiff for the sum of $815, which was evidenced by a written instrument in the nature of a promissory note containing a provision that the title of the piano should remain in the plaintiff until the said sum was paid. The contract provided for payments in installments; $30 in cash and the balance to be paid $10 each month until the full amount was paid; deferred payments to draw interest at the rate of 8 per cent. per annum. The itemized statement of the plaintiff showed that there was at the time of the institution of this suit due the sum of $98.28.
The defendant for his answer alleges that he and plaintiff had an independent oral contract whereby it was agreed between plaintiff and defendant that the defendant should pay for the piano in hauling, and that the plaintiff had breached the oral independent contract by reason of the plaintiff refusing to furnish the defendant hauling, and further claims a set-off for storage of boxes for the plaintiff.
The defendant urges several assignments of error for the reversal of this cause, but the following is all that it is deemed necessary to consider here: That the court erred in excluding competent testimony offered by the defendant to prove his defense under the oral agreement at the time of the sale of the piano entered into.
Before taking up the consideration of the assignment of error by the defendant, there are some preliminary questions raised by the plaintiff which should be disposed of. The plaintiff insists that this appeal should be dismissed for the following reason: That the record does not show any final judgment rendered on the verdict by the trial court in said cause; that the order of the trial court extending the time in which to prepare and serve the case-made is so indefinite and uncertain that the same is void.
The case-made in this cause does not show that any judgment was rendered on the verdict in said cause, but the law is well settled by the decisions of this court and the decisions of the Supreme Court of Kansas from where the Code of Civil Procedure is taken that an appeal can be taken from an order overruling a motion for a new trial, notwithstanding no judgment has been pronounced in accordance with the verdict. Roof v. Franks, 26 Okl. 392, 110 P. 1098; Phillips v. Oliver, 155 P. 586-this court following the decision of the Supreme Court of Kansas in the case of Am. Surety Co. v. Ashmore, 74 Kan. 325, 86 P. 453. The record does not show that any formal order was signed by the judge and entered in the court below, but the case-made does contain...
To continue reading
Request your trial