Mid-West Chevrolet Corp. v. Noah

• Decision Date: 11 June 1935
• Docket Number: Case Number: 23772
• Citation: 1935 OK 665,48 P.2d 283,173 Okla. 198
• Parties: MID-WEST CHEVROLET CORP. v. NOAH
• Court: Oklahoma Supreme Court

1935 OK 665

48 P.2d 283

173 Okla. 198

MID-WEST CHEVROLET CORP. v. NOAH

Case Number: 23772

Supreme Court of Oklahoma

Decided: June 11, 1935

Syllabus

¶0 1. EVIDENCE - Parol Evidence Rule as to Varying Terms of Written Contract - Exception as to Distinct Parol Agreement not Contradictory of Written Contract.

The general rule is that parol evidence is inadmissible to vary the terms of a written contract between the parties, and that negoitations had between them prior to the execution of the written instrument are merged in the writing. But an exception to this rule is as well recognized as the rule itself - that is, that a distinct parol agreement between the parties, although prior to or contemporaneous with the written contract and not contradictory thereof, is not excluded by the rule above quoted.

2. SAME - Parol Evidence Admissible Where Entire Agreement not Expressed in Writing.

Where the written instrument does not express the entire agreement of the parties, extrinsic evidence is admissible with respect to the matters not provided for in the writing.

3. SAME - FRAUD - Latitude of Evidence - Parol Evidence.

Where a cause of action is based upon fraud and deceit, greater latitude is allowed in the introduction of evidence, and in the discretion of the trial court oral evidence to explain the acts and conduct of the parties is admissible to show the whole transaction involving the alleged fraud.

4. FRAUD - Actionable Fraud in Promise Made Mala Fide.

Where a party makes a promise mala fide, and induces one to act thereon, and without the intention of carrying it out in good faith, and one relies thereon, and acts to his damage, it is such a fraud as a court will take cognizance of, and from which it will give relief.

5. CORPORATIONS - Corporation Bound by Acts of Agents Where Benefits Accepted.

Where a corporation permits its sales manager and its vice president to hold themselves out as representatives of the company, and accepts the benefits derived therefrom, the company will be bound by their acts as agents of the company.

6. APPEAL AND ERROR - REVIEW - Conclusiveness of Verdict on Questions of Fact.

Questions of fact passed upon by the jury in a law case under proper instructions of the court will not be set aside.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by G.W. Noah against the Mid-West Chevrolet Corporation and Frank H. Crasse. Judgment for plaintiff, and defendants appeal. Affirmed.

West & Davidson, for plaintiffs in error.

Aby & Tucker and Frank Settle, for defendant in error.

PER CURIAM.

¶1 The parties will be referred to as they appeared in the lower court; the plaintiffs in error were defendants, and the defendant in error was plaintiff.

¶2 The defendant Mid-West Chevrolet Corporation was engaged in selling Chevrolet automobiles and trucks in the city of Tulsa. The defendant Crasse was truck sales manager for said company, and one Hal Hays was general sales manager and vice president of the corporation. Shortly prior to June, 1931, the defendants ran the following advertisement in the Tulsa newspapers:

"Employment

"Help Wanted, Male

"Wanted Men

"Who can finance new trucks

"Good Haul; Long Job

"Call 4-9191"

¶3 Upon reading this advertisement, the plaintiff went to the place of business of the defendants and entered into negotiations for the purchase of a truck.

¶4 It is alleged in plaintiff's petition that the defendants represented and guaranteed to plaintiff that if he would purchase a truck and make the down cash payment thereon he would be given certain work at which he could earn from $12 to $14 per day by the use of the truck, which would enable him to pay certain expenses and the balance of the purchase price of the truck; that plaintiff, relying upon such representations and guarantees made by the defendants, entered into a written contract for the purchase of a truck, the representations and guarantees as made by the defendants and relied upon by the plaintiff constituting the sole and only reasons for plaintiff purchasing the truck; that at the time he purchased the same he made the down payment of $327 and gave his note for $624, the balance of the purchase price; that thereafter plaintiff was sent by defendants to the state of Arkansas for the purpose of engaging in work with the truck upon the highways in that state; that the work 'was not as represented and guaranteed by the defendants, and that he returned to Oklahoma and worked at other places where the promises and guarantees of the defendants were not carried out; and that by reason of defendants' failure to carry out the guarantees and promises made by them, the defendants had been guilty of fraud and deceit, and plaintiff had been damaged thereby.

¶5 The agreement to purchase the truck was in writing, and contained the following paragraph:

"The above comprises the entire agreement affecting this purchase and no other agreement or undertakiing of any nature concerning same has been made or entered into or will be recognized."

¶6 After the purchase of the truck, plaintiff defaulted in his payments, and the General Motors Acceptance Corporation, to which the note had been transferred, took possession of the truck, and plaintiff immediately brought this suit, sounding in tort for damages by reason of the fraud and deceit which plaintiff claimed was practiced upon him at the time he purchased the truck.

¶7 Fourteen assignments of error are set out by the defendants, but we think that they may be grouped under three heads, as suggested by the defendants:

1. The petition of plaintiff was predicated on the failure to perform an oral promise of employment made prior to, or contemporaneous with, the written contract of sale of the truck, and proof of such oral promise was inadmissible.

2. (a) If the action was for fraud and deceit, predicated upon the theory of a fraudulent promise of employment to induce the purchase of the truck, defendant in error proved no cause of action, because plaintiff acted upon alleged promissory statements which could not be the basis of an action for fraud and deceit.

(b) That the parties attempting to act as representatives of the Mid-West Chevrolet Corporation were not the authorized agents of the defendant company, and that said persons had no authority, either express or implied, to bind the corporation.

3. The facts in evidence are insufficient in law to establish a cause of action for fraud and deceit, and the motions for directed verdict of the defendants should have been sustained.

¶8 Under the first proposition, counsel for the defendants contend that the cause of action pleaded in this case was predicated on the failure to perform an oral promise of employment made prior to, or contemporaneously with the written contract of sale of the truck, and that proof of such oral promise was inadmissible because inconsistent or at variance with the contract.

¶9 It is too well known to submit authorities, that the general rule is that parol evidence is inadmissible to vary the terms of a written contract between the parties, and that all negotiations had between them prior to the execution of the written instrument are merged in the writing.

¶10 An exception that is as well established as the rule itself is that parol evidence of a distinct, valid parol agreement between the parties, although prior to or contemporaneous with a written contract, is not excluded by the general rule above quoted, where it does not vary or in any way contradict the writing; and that when a writing does not express the entire agreement of the parties, extrinsic evidence is admissible with respect to the matters not provided for in the writing. The questien usually arises as to whether the parol evidence sought to be introduced contradicts or alters the written contract, or leaves it to stand unchanged and simply tends to establish an additional collateral agreement.

¶11 An examination of the authorities immediately reveals a hopeless conflict, and a difficult situation in drawing the correct distinction as to when the oral evidence should be admitted and when it should be excluded.

¶12 In 22 C. J. page 1144, the text reads:

"It has been said that in the multitude of exceptions much confusion has arisen, so that the exact limit to be placed upon the exceptions depends not only upon the peculiar facts of each case, but also to some extent upon the peculiar cast of thought of the individuals composing the court." Like the general authorities, the Oklahoma cases are somewhat in conflict upon this proposition, and while some of the decisions attempt to draw a distinction, they are very close.

¶13 Some of the Oklahoma cases which have passed upon this proposition, upholding the admissibility of the testimony, are as follows: Macklin v. Darrow Music Co., 69 Okla. 1, 169 P. 497; Powell v. Security National Bank, 141 Okla. 169, 284 P. 5; Hensley v. Moss, 132 Okla. 267, 270 P. 317; American National Bank of Ardmore v. Dunn, 143 Okla. 116, 287 P. 999; Niagara Fire Ins. Co. v. Flowers, 127 Okla. 137, 259 P. 840; Packard Oklahoma Motor Co. v. Funk, 117 Okla. 96. 245 P. 571: Edwards v. City National Bank of McAlester, 83 Okla. 204, 201 P. 233; Palestine Drug Co. v. Boggs, 167 Okla. 260, 29 P.2d 56. See, also, Weeks v. Medler, 20 Kan. 57, and Johnson v. McCart (Wash.) 63 P. 1121.

¶14 Some of the cases which have held that the testimony is inadmissible are as follows: Clinton National Bank v. McKennom, 26 Okla. 835, 110 P. 649; Duffey v. Scientific American Comp. Dept., 30 Okla. 742, 120 P. 1088; Colbert v. First National Bank of Ardmore, 38 Okla. 391, 133 P. 206; Union National Bank v. Lavacota Oil & Gas Co., 89 Okla. 259213213 213 P. 869: Stebbins v. Lena Lumber Co., 89 Okla. 244, 214 P. 918; Posey v. Citizens' State Bank, 93 Okla. 266, 220 P. 628: Frickle v. Norval & Dial. Inc., 118 Okla. 41, 246 P. 381; Blankenburg v. Norval & Dial, Inc., 135 Okla. 131, 275 P. 1040; also, Stein v. Fogarty (Idaho) 43 P. 681: Munn v....