Packard Okla. Motor Co. v. Funk

• Decision Date: 10 November 1925
• Docket Number: Case Number: 15725
• Citation: 117 Okla. 96,1925 OK 916,245 P. 571
• Parties: PACKARD OKLAHOMA MOTOR CO. v. FUNK.
• Court: Oklahoma Supreme Court

1925 OK 916

245 P. 571

117 Okla. 96

PACKARD OKLAHOMA MOTOR CO. v. FUNK.

Case Number: 15725

Supreme Court of Oklahoma

Decided: November 10, 1925

Syllabus

¶0 1. Evidence--Parol Evidence of Contemporaneous Oral Agreement Consistent with Written Contract--Sufficiency of Petition on Contract.

While parol testimony is inadmissible to change or contradict the terms of a written contract, yet a parol contract may be made between the parties contemporaneously with the execution of a written agreement, providing it is separate and independent, and its terms are in no way conflicting with or contradictory to the written stipulation, and where the petition alleges a contract partly in writing and partly parol, and such petition does not show upon its face that the alleged parol portion of the agreement is in conflict with, or contradicts, or is repugnant to the written contract, such petition is good as against demurrer urged upon the ground that it is an attempt to alter or change the terms of a written contract by a contemporaneous oral agreement.

2. Sales--Date of Execution of Writing--When Question for Jury.

Where two written instruments have relation to the purchase and sale of specific personal property, one of such written instruments being undated and the other bearing the date of its execution, and it is contended by plaintiff that they were signed on the same day and date and this is denied by defendant, a question of fact is presented for determination by a jury in a law action.

3. Same--Duration of Option to Cancel Purchase--Parol Evidence.

Where the undated written instrument gives to the purchaser of personal property an option to cancel the order or purchase, and the written instrument is silent as to the time when such option should expire, and a second instrument, bearing a date, is executed by the same parties with reference to the same subject-matter, and such second instrument does not in express terms or by necessary implication supersede the first instrument, and fixes no time for the expiration of the option of cancellation, the question of such time expiration may be proven by parol and is a question of fact for determination of the jury in a law action, from all the evidence attending the transaction.

4. Evidence--Parol Evidence to Explain Writing--Duration of Option to Cancel Purchase.

Where the terms of a written instrument, viewed in the light of all attendant circumstances, are ambiguous, uncertain, or obscure with reference to the termination date of an option of cancellation stated therein, parol evidence is admissible to explain and clarify the terms and to fix the time or circumstances of the termination of such option.

5. Appeal and Error--Conflicting Evidence--Verdict Conclusive.

Where evidence is conflicting, this court will not review the evidence for the purpose of determining the weight thereof, but where there is any competent testimony reasonably tending to support the verdict of the jury, and the facts are submitted to them, under proper instructions from the court, the verdict will not be disturbed on appeal.

Commissioners Opinion, Division No. 3.

Error from District Court, Tulsa County; Enloe V. Vernor, Assigned Judge.

Action by John Funk against Packard Oklahoma Motor Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Kleinschmidt & Johnson, for plaintiff in error.

Caruthers & Irwin, for defendant in error.

RUTH, C.

¶1 The parties will be designated as they appeared in the trial court. Plaintiff brings his action to recover $ 1,965.72, with interest from October 20, 1921, and alleges he entered into a contract, partly in writing, consisting of two separate instruments, and partly parol, whereby the plaintiff agreed to purchase an automobile truck from defendant for the sum of $ 4,345.10, and under the terms of the oral portion of the agreement, it was agreed that if the truck was left in the possession of the defendant, plaintiff might at any time he so desired, before payment in full of purchase price was completed, demand back and receive the full amount which he had paid; that he paid $ 1,965.72, and on October 20, 1921, he exercised his option to cancel the contract of purchase, and demanded of defendant the amount paid; that the notice of cancellation and demand were in writing, but defendant refused to return the money so paid.

¶2 Defendant's answer admits that on August 6, 1920, it sold to plaintiff one Packard truck, No. 177711, Model "C," in accordance with the terms of a conditional sales agreement of that date, and attaches copy; admits payment of $ 1,935.72, but denies that plaintiff at any time subsequent to August 6, 1920, had any option, right, or privilege to cancel said contract. Defendant further alleges that prior to August 6, 1920, plaintiff placed an order for one 2 1-2 ton truck, and paid a deposit of $ 248.10, and by the terms of this written order "plaintiff was entitled to cancel the order at any time under the conditions mentioned therein before the specific truck was accepted by plaintiff and paid for by him, delivery having been made in accordance with the terms of said order, and on August 6, 1920, plaintiff accepted the truck and gave his ten certain promissory notes for $ 286.27, and agreed to pay $ 1,482.42, less the amount of his initial deposit of $ 248.10, but plaintiff being unable to pay the $ 1,482.42, it was agreed orally that defendant should retain possession of the truck until the balance of the $ 1,482.42 was paid; that plaintiff paid six of the ten notes and then requested defendant to sell the truck for him, as he had no use for it, but that they were unable to sell the truck.

¶3 The cause was tried to a jury, and verdict returned and judgment rendered for plaintiff, and defendant appeals and presents its assignments of error under three several propositions: The first is directed against the court's judgment overruling the demurrer to the petition, the demurrer to the plaintiff's evidence, and to the sufficiency of the evidence.

¶4 Defendant relies upon and cites section 5053, C. O. S. 1921, which provides:

"The execution of a contract in writing, whether the law requires it to be in writing or not, supersedes all oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument"

--and also section 5081:

"A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise."

¶5 Defendant also cites and quotes from Union National Bank v. Lavacota Oil & Gas Co. 89 Okla. 258, 213 P. 869; Deming Investment Co. v. Shawnee Fire Insurance Co., 16 Okla. 1, 83 P. 918, 4 L.R.A. (N.S.) 60; Stebbins v. Lena Lumber Co., 89 Okla. 244, 214 P. 918; Bolon v. Massey, 101 Okla. 8, 222 P. 685; and we have examined and compared the cases cited with the case under review and the same are not authorities for sustaining a demurrer to the plaintiff's petition.

¶6 There can be no question about the right of parties to enter into an oral contract, a written contract, or a contract partly in writing and partly parol.

¶7 In Mackin v. Darrow Music Co., 69 Okla. 1, 169 P. 497, this court held:

"While parol testimony is inadmissible to change or contradict the terms of a written contract, yet a parol contract may be made between the parties contemporaneously with the execution of a written agreement, providing it is separate and independent, and its terms in no way conflicting with or contradictory to the written stipulation."

¶8 The case cited involved the purchase of a piano, upon payment of $ 30 cash, and a promissory note for the balance, payable $ 10 monthly, and the oral agreement was that the defendant pay the installments in services, to wit, hauling for the music company, and the plaintiff failed to furnish the hauling to be done by defendant.

¶9 See, also, First National Bank of Buffalo v. Ward, 91 Okla. 33, 215 P. 752; Stone v. Spencer, 79 Okla. 85, 191 P. 197; Jesse French Piano Co. v. Bodovitz, 73 Okla. 87, 174 P. 765; Holmes v. Evans, 29 Okla. 373, 118 P. 144; O. K. Transfer & Stor. Co. v. Neill, 59 Okla. 291, 159 P. 272; Smith v. Bond, 56 Okla. 112, 155 P. 1116; Edwards v. City National Bank, 83 Okla. 204, 201 P. 233.

¶10 In 10 Ruling Case Law 1059, it is said:

"The existence of a contemporaneous parol agreement between the parties under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper may always be shown when the enforcement of the paper is attempted. It is a plain fraud to secure the execution of an instrument by representations differing in important particulars from those contained in the paper, and after the paper has been signed, attempt to compel a literal compliance with its terms, regardless of the contemporaneous agreement without which it would not have been signed at all."

¶11 In the instant case, the petition alleged the original order or "pink slip" signed by the plaintiff and prepared and furnished by the defendant contained the following: "If cancellation of this contract is desired, it shall be by written notice, and deposit shall be returned to purchaser," and stamped across the face of this contract were the words: "Prices stipulated subject to change without notice with option to purchaser of cancelling order," and this option of cancellation, it is alleged, continued throughout the dealings, until the truck was actually delivered to and accepted by the plaintiff. We therefore are constrained to hold the petition stated a cause of action and was good as against demurrer. To this petition defendant filed its answer, admitting the payment of six notes; the payment of $ 248.10 deposit of the $ 1,482.40 cash deposit required; and that there was an oral agreement as to the possession of the truck until the balance of the $ 1,482.40 or $ 1,234.30 was paid, and it would thus appear from the defendant's...