Milner v. Earl Fruit Co. of Northwest

• Decision Date: 02 January 1925
• Citation: 40 Idaho 339,232 P. 581
• Parties: A. J. MILNER, Respondent, v. EARL FRUIT COMPANY OF THE NORTHWEST, a Corporation, Appellant
• Court: Idaho Supreme Court

232 P. 581

40 Idaho 339

A. J. MILNER, Respondent, v. EARL FRUIT COMPANY OF THE NORTHWEST, a Corporation, Appellant

Supreme Court of Idaho

January 2, 1925

WRITTEN CONTRACT-MODIFICATION-PAROL EVIDENCE RULE-FRAUD AND MISREPRESENTATION-PLEADING-CHANGE OF THEORY ON APPEAL.-

1. Where parties have entered into a contract or agreement which has been reduced to writing, if the same is complete upon its face and unambiguous, no fraud or mistake being alleged parol evidence of prior or contemporaneous negotiations or conversations is not admissible to contradict, vary, alter add to or detract from the terms of the written contract.

2. Where a party seeks to recover on the ground of fraud, the particular facts constituting the fraud must be definitely and positively alleged.

3. A written contract cannot be avoided by one of the parties thereto on the ground that he signed it without reading it and did not understand it. Failing to read the contract or to have the same read to him or to otherwise inform himself as to the nature, terms and conditions thereof constituted gross negligence on his part.

4. Where a modification of a contract is relied upon for recovery, such modification must be pleaded.

5. A party will be held to the theory upon which the cause was tried in the lower court and a different and inconsistent theory cannot be advanced for the first time upon appeal.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action on contract. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellant.

W. P. Guthrie and Chas. M. Kahn, for Appellant.

Parol evidence is never admissible to vary, alter, add to or detract from the terms of a written contract. (22 C. J., pp. 1070, 1074, 1098-1104; 10 R. C. L., pp. 1016-1018; Chamberlayne's Hand Book on Evidence, pp. 862-869; 9 Ency. of Evidence, 321-325; Greenleaf on Evidence, 16th ed., sec. 275; Marks v. Twohy Bros. Co., 98 Ore. 514, 194 P. 675; Vaughn v. Smith, 80 Okla. 244, 195 P. 754; First National Bank v. Fickert, 51 Cal.App. 99, 196 P. 112; Fagan v. Walters, 115 Wash. 454, 197 P. 635; Rowe v. Emerson-Brantingham Implement Co., 61 Mont. 73, 201 P. 316; United States Fidelity & Guaranty Co. v. Grabske, 111 Kan. 271, 207 P. 322; Jacobs v. Shenon, 3 Idaho 274, 29 P. 44; Stein v. Fogarty, 4 Idaho 702, 43 P. 681; First National Bank v. Bews, 5 Idaho 678, 51 P. 777; Newmeyer v. Roush, 21 Idaho 106, 123, 120 P. 464; Tyson v. Neill, 8 Idaho 603, 70 P. 790; Idaho Fruit Land Co. v. Great Western Beet Sugar Co. , 18 Idaho 1, 107 P. 989; Payette National Bank v. Ingard, 34 Idaho 295, 200 P. 344; Beebe v. Pioneer Bank & Trust Co., 34 Idaho 385, 201 P. 717; Jarrett v. Prosser, 23 Idaho 382, 130 P. 376; Hurt v. Monumental Mercury Mine Co., 35 Idaho 295, 206 P. 184.)

Fraud must be pleaded to be relied upon. (Moser v. Pugh-Jenkins Furniture Co., 31 Idaho 438, 173 P. 639; Int. Warehouse Co. v. Dunn, 80 Ore. 528, 157 P. 806; San Diego Co. v. Utt, 173 Cal. 554, 160 P. 657; Buhler v. Loftus, 53 Mont. 546, 165 P. 601; Benson v. Johnson, 85 Ore. 677, 165 P. 1001; Harding v. Robinson, 175 Cal. 651, 166 P. 808.)

Ignorance of terms of failure to read contract afford no grounds to avoid it. (13 C. J. 370; 6 R. C. L. 634; Constantine v. McDonald, 25 Idaho 342, 137 P. 531; Price v. Shay, 110 Kan. 351, 203 P. 1105.)

No change of theory on appeal is permitted. (3 C. J., sec. 618, p. 718; Miller v. Sheane, 120 Wash. 227, 206 P. 913; Forsland v. Forsland, 46 Cal.App. 405, 189 P. 327; Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 285 Mo. 669, 227 S.W. 67; Kenefick v. Norwich Union Fire Ins. Soc., 205 Mo. 294, 103 S.W. 957; Werner Co. v. Abrams, 123 N.Y.S. 970; Schneider v. Henley, 61 Cal.App. 758, 215 P. 1036; Merrill v. Kohlberg, 29 Cal.App. 382, 155 P. 824; Lebcher v. Lambert, 23 Utah 1, 63 P. 628; Blanc v. Connor, 167 Cal. 719, 141 P. 217.)

Oral modifications of the contract must be pleaded. (C. S., sec. 6687, subd. 2; Bates v. Capital State Bank, 21 Idaho 141, 121 P. 561; 13 C. J., sec. 835, p. 731; Dunaway v. Roden, 14 Ala. App. 501, 71 So. 70; Koons v. St. Louis Car Co., 203 Mo. 227, 101 S.W. 49; Ostrander v. Messmer, (Mo. App.), 223 S.W. 438; Ross-Saskatoon Lumber Co. v. Turner Dennis Lowry Lumber Co. (Mo. App.), 253 S.W. 119; Ruth Hastings Glass Tube Co. v. Slattery, 266 Pa. 288, 109 A. 695; Brooks v. Bellows, 192 Mich. 109, 158 N.W. 152; Finley v. Pew, 28 Wyo. 342, 205 P. 310, 206 P. 148; O'Connor v. Dingley, 26 Cal. 19; Victor Sewing Mach. Co. v. Scheffler, 61 Cal. 530.)

E. V. Larson, for Respondent.

A written contract may be modified or varied by a subsequent parol agreement where such change or modification has been executed. (6 R. C. L., secs. 298, 299, 301, and authorities cited; 10 R. C. L., p. 1032, sec. 225; 13 C. J., p. 593, sec. 609; Jones on Evidence, sec. 442.)

Where issues are raised in a trial and evidence has been submitted to a jury the judgment of the court or verdict of the jury will not be disturbed where the proof is sufficient. ( Fruitland State Bank v. Lauer, 34 Idaho 272, 200 P. 127; Lyons v. Lambrix, 33 Idaho 99, 190 P. 356; Lisenby v. Intermountain State Bank, 33 Idaho 101, 190 P. 355; Walker v. Edwards, 32 Idaho 257, 181 P. 932; Neil v. Hyde, 32 Idaho 576, 186 P. 170; Shaw v. City of Nampa, 31 Idaho 347, 171 P. 1132.)

BUDGE, J. McCarthy, C. J., and William A. Lee, J., concur. WM. E. LEE, J., Dissenting.

OPINION

BUDGE, J.

Respondent in this action seeks to recover from appellant $ 7,766.04, an alleged balance due for his 1919 crop of apples which he alleges were delivered to the appellant at his special instance and request between September 22, 1919, and November 3, 1919. Appellant in his answer denies specifically the allegations of respondent's complaint and affirmatively alleges that on or about May 24, 1919, it entered into a written consignment contract with respondent wherein it was mutually agreed that the entire apple crop of respondent for the year 1919, estimated at about 18,000 boxes, was to be delivered to appellant. The contract is set out in full and made a part of the answer and contains the usual and general provisions of a consignment contract, including the payment of commission, costs and expenses in connection with the loading, inspecting, shipping and transportation of the fruit to the place of sale or to the points designated by the appellant. It also provides that appellant shall make certain advances for the purchase of spray, box materials, nails, paper and expenses incident to the thinning of the orchard and also provides that appellant shall furnish, from time to time, accounts of all apples sold with debits and credits by reason of advancements, storage charges and other matters not necessary to be mentioned.

The cause was tried to the court and a jury. A verdict was rendered in favor of respondent for $ 7,766.04 and thereafter judgment was entered on said verdict. A motion for new trial was thereafter made and overruled. This appeal is from the judgment and from an order overruling the motion for a new trial.

Appellant designates five specifications of error which may be discussed and disposed of under specification of error No. 4, which is that "the court erred in admitting certain testimony of the plaintiff, A. J. Milner, relating to negotiations, conversations and transactions prior to the entering into of the written contract." If the action of the court in this regard was erroneous, its action was likewise erroneous in refusing to grant appellant's motion for a nonsuit, a directed verdict and in denying appellant's motion for a new trial. The evidence objected to related to conversation and negotiations that took place between respondent, Lester Campbell and F. V. Martin, the two latter being agents of appellant, prior to entering into the written contract set out in appellant's answer. It might be here observed that one James Swan, who testified that he was present and heard the conversations and negotiations had between the above named parties, was permitted to testify to the substance of the conversations and negotiations alleged to have been carried on. We shall consider only such of the testimony given by the respondent as is necessary to dispose of the question raised by the fourth assignment of error.

Respondent testified that Martin and Campbell came to his place on the 19th or 20th of May, 1919, at which time he had a conversation with them, as representatives of the appellant, touching the matter of the consignment to that company of his apple crop for that year. He testified that he said to them that he did not care to ship any of his crop on consignment; that he intended to sell his crop f. o. b. cars at Buhl; that finally Mr. Martin made him a proposition that appellant would make him a price for the apples at picking time, f. o. b. cars at Buhl; and that he would have the privilege of rejecting or accepting the price made by him at that time. He further testified that Mr. Martin said that in making that price or offer they would take ten cents a box from their price and he would then have the absolute price that he would get for his apples, f. o. b cars at Buhl, with the privilege of either accepting or rejecting the price offered at picking time. At this point in the testimony appellant's counsel asked to be permitted to interrogate the witness and with the consent of the court, asked the following question:

"Q. Did you have a written contract with the Earl Fruit Company? A. There was one entered into."

Counsel for appellant then interposed the following objection:

"We object to any testimony which would attempt to vary the terms of the written contract by parol; and we object to it further upon the...