Mt. Vernon Stone Co. v. Sheely

• Decision Date: 28 May 1901
• Parties: MT. VERNON STONE COMPANY v. J. R. SHEELY & CO. et al., Appellants
• Court: Iowa Supreme Court

86 N.W. 301

114 Iowa 313

MT. VERNON STONE COMPANY v. J. R. SHEELY & CO. et al., Appellants

Supreme Court of Iowa, Des Moines

May 28, 1901

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

PLAINTIFF a corporation, brings this action against the defendant co-partnership and the members thereof, and, as cause of action, alleges, in substance, as follows: That these parties entered into a contract in writing on the twenty-ninth day of October, 1897, as follows: "This agreement, entered into this day between J. R. Sheely & Co., of Des Moines, Iowa party of the first part, and the Mt. Vernon Stone Co., of Mt Vernon, Iowa by its secretary and treasurer, W. E. Plattner party of the second part, witnesseth, that the party of the first part agrees to purchase of the party of the second part about three hundred and fifty cubic yards (350) bridge stone for the Sutliff Ferry Bridge across the Cedar river, in Johnson county, Iowa--stone to be of such dimension and quality as to fill the specifications, and to be satisfactory to engineer in charge,--and to pay party of the second part for said stone at the rate of $ 6.25 (six and 25-100 dollars) per cubic yard for stone cut and delivered on wagons at bridge site. Upon delivery of each one hundred yards, the party of the first part agrees to pay the party of the second part at rate of $ 6.25 per cubic yard. Party of the second part agrees to use diligence in quarrying, cutting, and delivering said stone, and to have all of said stone delivered to bridge site not later than January 1st, 1898. Unavoidable delays, bad weather, strikes, to be cause for additional time." Plaintiff further alleges: "That a part of said contract was oral, and that the oral part of said contract was as follows, to wit: The plaintiff was to have said stone cut, dressed, and measured in the quarry, and to give to the haulers a ticket showing the number of yards or feet in each stone, which was to be handed to the defendants or their employes or agents when said stone was unloaded off the wagons at the bridge; and, if any controversy arose as to the number of feet or the quality of the stone, the same was to be determined before said stone was used in said bridge. That, as a further part of said oral contract, the defendant agreed to have their derrick put up at the bridge site ready for unloading said stone as early as November 5, 1897, for the purpose of unloading said stone and that, in violation of said agreement, they failed to procure said derrick and have it ready for unloading stone until on or about the 29th day of November, 1897." That by reason of this failure plaintiff was damaged to the extent of $ 200. That plaintiff delivered 312 4-27 cubic yards of stone according to contract. That said stone was received without objection. That defendant paid $ 1,600 thereon, and there is a balance of $ 350.92 due thereon. That plaintiff furnished a stonecutter to work for the defendants to the value of $ 14.25. Plaintiff asks to recover $ 565.17. Defendants answered, admitting the execution of the written contract, and denying that there was any oral contract entered into. They admit that they paid the $ 1,600, and allege that the amount was $ 58.63 in excess of the amount due, and ask to recover that amount. They deny that plaintiff furnished them with a stonecutter, and deny the allegations as to failure to furnish a derrick, and as to the damages caused thereby. Defendants, as a counterclaim, alleged that the stone furnished was not according to contract in certain particulars specified, by reason of which defendants were compelled to incur other expenses, to their damage in the sum of $ 88.95; that the plaintiff failed to deliver the stone within the time agreed, whereby defendants were damaged $ 1,000. Defendants asked judgment for $ 1,147.58. Plaintiff replied, denying generally the allegations in the counterclaim. Verdict and judgment were rendered in favor of the plaintiff for $ 465.07. Defendants appeal.

Affirmed.

John Newburn and Mackenzie & Dewey for appellants.

Chas. W. Kepler for appellee.

OPINION

GIVEN, C. J.

I. Evidence offered by plaintiff tending to show the oral agreements alleged was admitted over defendants' objections, and of this they complain. "The rule is elementary that, where a contract is reduced to writing, the writing affords the only evidence of the terms and conditions of the contract. All antecedent and contemporaneous verbal agreements are merged in the written contract. The law will not allow that an agreement in such case may rest partly in writing and partly in parol, so that it is equally inadmissible to add to, take from, or specifically change the terms of the written agreement by parol." Kelly v Railway Co., 93 Iowa 436. In Murdy v. Skyles, 101 Iowa 549, 70 N.W. 714, we said: "It is well...