Mcninch v. Nw. Thresher Co.

• Decision Date: 09 March 1909
• Docket Number: Case Number: 2175 OK Ter
• Citation: 23 Okla. 386,1909 OK 60,100 P. 524
• Parties: MCNINCH v. NORTHWEST THRESHER CO.
• Court: Oklahoma Supreme Court

1909 OK 60

100 P. 524

23 Okla. 386

MCNINCH v. NORTHWEST THRESHER CO.

Case Number: 2175 OK Ter

Supreme Court of Oklahoma

Decided: March 9, 1909

Syllabus

¶0 1. EVIDENCE--Parol Evidence Affecting Writings--Merger of Prior or Contemporaneous Negotiations. The execution of a contract in writing supersedes all the oral negotiations or stipulations concerning its terms and subject-matter which preceded or accompanied the execution of the instrument, in the absence of accident, fraud, or mistake of fact; and any representation made prior to or contemporaneous with the execution of the written contract is inadmissible to contradict, change, or add to the terms plainly incorporated into and made a part of the written contract.

2. EVIDENCE--Parol Evidence Affecting Writings--Notes--Consideration. Where by the terms of a written contract it is specifically stated that it is executed and delivered for and in consideration of the credit granted by one of the parties to a third person on the purchase price of certain machinery bought of said party by said third person, such provision in relation to the consideration binds the parties within the rules applicable to written contracts and can no more be altered or varied by oral evidence than any other part of the contract, in the absence of fraud, accident, or mistake.

3. CONTRACTS--Validity--Fraud. If a party is induced to sign a contract by fraud, he can, of course, avoid it for that reason. It is, however, clear that merely falsely representing to a man in possession of his faculties and able to read that a writing embodies their verbal understanding is not the fraud the law means.

4. PLEADING--Motions to Strike Pleading--Insufficient Allegations. Where a motion to make an answer more definite and certain is sustained, and the amended answer measurably complies with the order of the court by making the answer more definite and certain in the particulars thereby required, it is error to sustain a motion to strike such amended answer from the files, although it may not state facts sufficient to constitute a defense.

James L. Brown and Gustave A. Erixon, for plaintiff in error.

M. D. Libby, for defendant in error.--The execution of a contract in writing supersedes all the oral negotiations or stipulations concerning its terms and subject matter which preceded or accompanied the execution of the instrument, in the absence of accident, fraud, or mistake of fact; and any representations made prior to or contemporaneous with the execution of the written contract, are inadmissible to contradict, change, or add to the terms plainly incorporated into and made a part of the written contract: Liverpool. London & Globe Ins. Co. v. Richardson Lumber Co., 11 Okla. 585; Guthrie & W. R. Co. v. Rhodes, 19 Okla. 21; Garrison v. Kress et al., 19 Okla. 433; Mower Harwood Creamery & Dairy Co. (Iowa) 113 N.W. 466; Farlow v. Chambers (S.D.) 110 N.W. 94; Jackson v. C., etc., R. Co., 54 Mo. App. 636; Pierce v. Brownenberg's Estate (Ind.) 79 N.E. 419.

Error from District Court, Canadian County; C. F. Irwin, Judge.

Action by the Northwest Thresher Company against W. R. McNinch. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

James L. Brown and Gustave A. Erixon, for plaintiff in error.

M. D. Libby, for defendant in error

KANE, C. J.

¶1 This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, upon a certain written instrument of which the following is a copy:

"$ 150.00. Piedmont, O. T., June 10, 1905. For value received, on or before the first day of August, 1905, I promise to pay to the order of Northwest Thresher Company, Stillwater, Minnesota, one hundred fifty dollars, at Piedmont State Bank, of Piedmont, O. T., with interest from maturity until fully paid at the rate of eight per cent. per annum, interest payable annually. This note is executed and delivered by me to the Northwest Thresher Company, for and in consideration of the credit granted by said company, on the purchase price of threshing machinery bought of said company by J. R. McClung of Piedmont, county of Canadian, territory of Okla. W. R. McNinch. Witness: George Gill. Minnie McNinch."

¶2 The defendant by his answer admitted the execution of the instrument and sought to justify nonpayment and nonliability by allegations of affirmative matter separated into two paragraphs or defenses. To the first defense a general demurrer was interposed, and to the second a motion to make more definite and certain. Both the demurrer and motion were sustained, and the defendant took leave to amend. The amended answer admitted the execution of the instrument and amplified to some extent the defense as previously stated. A general demurrer was sustained to the first defense, and the plaintiff moved the court to strike the second from the files for failure to comply with the order to make more definite and certain, which was also sustained. The defendant elected to stand upon his pleadings as amended, and thereupon judgment was rendered in favor of the plaintiff, and the defendant seeks to review these rulings of the court below by petition in error.

¶3 The first defense set up in the amended answer was based upon two theories: (1) A failure of consideration other than that stipulated in the writing; and (2) that by fraud and mistake of fact the written agreement stipulates for a particular consideration which was not the true consideration and that the true consideration failed. This defense was stated in words and figures as follows:

"(1) This defendant alleges the fact to be that, at the time the said note was signed, this defendant was the owner of a certain growing wheat crop in Canadian county, and the plaintiff was then engaged in the business of selling threshing machines and threshing outfits and engines. At the time said note was executed, plaintiff was seeking to sell one of their machines and outfits to one J. B. McClung, and the plaintiff was acting by one George Gill, in trying to sell said machine and outfit, and also in the matters hereinafter stated. (2) Plaintiff so acting by the said George Gill, who was then acting as the agent of the plaintiff, came to this defendant and verbally proffered to him, if he, this defendant, would agree to engage his threshing to them for that season, the plaintiff would sell one of its machines to the said McClung, and that they would do the threshing of the defendant that year for the usual price therefor, and that one half of the proceeds of said threshing should be given to the plaintiff for the estimate value of said work, and the other half should be by the defendant paid to McClung, and that this defendant should execute his note to plaintiff, in advance for one half of the value of said threshing so estimated. This defendant accepted said offer, and agreed thereto, and the plaintiff, acting by said Gill, agreed to the same. (3) Thereupon the said Gill produced the blank form on which said note was signed and filled out the same; but by fraud on his part, and by accident and oversight of this defendant and by his mistake, and by the intentional fraud of the said Gill, the consideration named in said note was not erased from said blank, and the true consideration inserted therein. (4) The words, 'the consideration for said note was credit extended to the said McClung,' are wholly untrue, and do not express the contract of the plaintiff and the defendant then and there made, and this wrong statement was so intentionally made by the said Gill, for the plaintiff, and with the fraudulent intent to then and there cheat and defraud this defendant, by getting from him a note on the false pretended consideration that it was being executed and given in consideration of credit being extended to the said McClung by the said plaintiff, and he deceiving the defendant and not expressing in said note the true consideration therefor, and by getting from him a written expression and declaration of the consideration for said note, to the end that a false consideration might appear in said writing, and that the plaintiff might thereby stop the defendant from proving the real and true facts and true consideration for said note. (5) That this defendant by mistake did not discover that the consideration was so wrongly stated in said note, but, relying on the verbal contract before set out, and by reason thereof, signed said note. (6) That this defendant was deceived in said manner into signing said note. (7) And the only consideration for his so signing said note was the verbal consideration and promise of the plaintiff that the said McClung should and would for plaintiff and for the said McClung so thresh the wheat of this defendant as aforesaid. (8) And by reason of said promise and verbal agreement this defendant signed said note. (9) And had he detected the fraud so being practiced on him at that time, and not made the mistake above set out, he would not have signed the said note. (10) Neither the plaintiff nor the said McClung threshed the wheat of defendant as agreed, or any part thereof, but wholly and entirely failed so to do, whereby the consideration for said note wholly and entirely failed."

¶4 We think the demurrer to this paragraph of the answer was properly sustained. The execution of a contract in writing supersedes all the oral negotiations or stipulations concerning its terms and subject-matter which preceded or accompanied the execution of the instrument, in the absence of accident, fraud, or mistake of facts; and any representation made prior to or contemporaneous with the execution of the written contract is inadmissible to contradict, change, or add to the terms plainly incorporated into and made a part of the written contract. Liverpool, London & Globe Insurance Company v. T. M. Richardson Lumber Company, 11 Okla. 579, 69 P. 936; Guthrie & W. R. Co. v. Rhodes, 19 Okla. 21, 91 P. 1119;...