McCormick Harvesting Mach. Co. v. Morlan

• Decision Date: 21 October 1903
• Parties: THE MCCORMICK HARVESTING MACHINE COMPANY, Appellee, v. DANIEL MORLAN, Appellant
• Court: Iowa Supreme Court

96 N.W. 976

121 Iowa 451

THE MCCORMICK HARVESTING MACHINE COMPANY, Appellee, v. DANIEL MORLAN, Appellant

Supreme Court of Iowa, Des Moines

October 21, 1903

Appeal from Carroll District Court.--HON. Z. A. CHURCH, Judge.

ACTION upon a written contract for the purchase of a mowing machine. Defendant admits the signing of the contract and a tender of the machine, but avers that the contract was not delivered to plaintiff, and further pleaded that his signature to the instrument was obtained by fraud. On these issues the case was tried to a jury, resulting in a directed verdict for the plaintiff. Defendant appeals.

Reversed.

M. W Beach and M. R. McCrary for appellant.

Lee & Robb for appellee.

OPINION

DEEMER, J.

Defendant offered evidence to the effect that he signed the order or contract for the machine, and gave it to an agent of plaintiff to hold until he found out about the price of another machine which had been offered him, and that this agent was to hold the order, and not send it to the plaintiff until he had heard from defendant again. He also testified that, after ascertaining the price of the other machine, he gave the agent no authority to deliver the contract, and that he never at any time told him to deliver it to the plaintiff. Some evidence was also introduced for the purpose of showing fraud on the part of this agent, but, in view of our conclusion, it is not necessary to consider this evidence.

The trial court struck out all the testimony relating to the agreement about the delivery of the contract, and directed a verdict for plaintiff. This was clearly erroneous. The evidence regarding delivery did not tend to vary or contradict the terms of the agreement; and it is always competent, as we understand it, to show by parol that a written instrument like the one in suit was never in fact delivered. Browne on Parol Evidence, section 32 et seq; Whitaker v. Salisbury, 32 Mass. 534, 15 Pick. 534; Leppoc v. Bank, 32 Md. 136; Reynolds v. Robinson, 110 N.Y. 654 (18 N.E. 127). Such evidence does not offend against the rule that parol testimony is not admissible to vary or contradict the terms of a written contract, but is received for the purpose of showing that it never became operative. Delivery involves something more than the mere passing over of the papers. Intent to make it operative is also an essential. This is fundamental doctrine. Bishop on Contract, section 349 et seq., and cases cited. Hogueland v. Arts, 113 Iowa 634, 85 N.W. 818. These rules are so elementary that it is hardly necessary to discuss them. The, trial court, as we understand it, held, however, that, as there was actual delivery to the seller's agent, it was not competent for defendant to show that this agent was to hold the contract in escrow; that the delivery to him was conditional, or that he (the defendant) did not in fact intend to make delivery to the plaintiff. Had the instrument been a deed, there might perhaps, be some basis for this holding. Westman v Krumweide, 30 Minn. 313 (15 N.W. 255); Braman v Bingham, 26 N.Y. 483. But that rule does not obtain as to simple contracts. Burke v. Dulaney, 153 U.S. 228 (14 S.Ct. 816, 38 L.Ed. 698); Westman v. Krumweide, supra; Juilliard v. Chaffee, 92 N.Y. 529; McFarland v. Sikes, 54 Conn. 250 (7 A. 408, 1 Am. St. Rep. 111); Wilson v. Powers, 131 Mass. 539. This...