Phx. Pub. Co. v. Riverside Clothing Co.

• Decision Date: 14 July 1893
• Citation: 55 N.W. 912,54 Minn. 205
• Parties: PHOENIX PUB. CO. v RIVERSIDE CLOTHING CO.
• Court: Minnesota Supreme Court

54 Minn. 205

55 N.W. 912

PHOENIX PUB. CO.vRIVERSIDE CLOTHING CO.

Supreme Court of Minnesota.

July 14, 1893.

(Syllabus by the Court.)

It is competent to prove by parol the existence of any separate oral agreement as to any matter as to which a written instrument is silent, and which is not inconsistent with its terms, when it is apparent that the parties did not intend the writing to be a complete and final statement of the whole transaction between them.

Appeal from municipal court of Minneapolis; Elliott, Judge.

Action by the Phoenix Publishing Company against the Riverside Clothing Company. From the judgment rendered, plaintiff appeals. Affirmed.

W. A. McDowell, for appellant.

Peterson & Kollimer, for respondent.

MITCHELL, J.

The rule forbidding the use of parol evidence to affect a written instrument does not apply to a case where a part only of the dealings between the parties in respect to a particular subject-matter is reduced to writing, except as respects such part. It is always competent to prove by parol the existence of any separate oral agreement as to any matter on which the document is silent, and which is not inconsistent with its terms, if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. 1 Greenl. Ev. § 284a; Steph. Dig. Ev. art. 90; Sewing-Mach. Co. v. Anderson, 23 Minn. 57;Furnace Co. v. Clark, 42 Minn. 335,44 N. W. Rep. 121;Beyerstedt v. Mill Co., 49 Minn. 1,51 N. W. Rep. 619;Routledge v. Worthington Co., 119 N. Y. 592, 23 N. E. Rep. 111. This rule, which is elementary, disposes of the only point in the case. The order given by defendant did not purport to be a full and final statement of the whole transaction between the parties. In fact, in and of itself it was not a contract at all. No obligation was assumed or agreement expressed in it on the part of the plaintiff. Parol evidence would have to be resorted to at the very outset to prove a contract. Of course, when the order was accepted, there was a binding contract, and, in so far as its terms were expressed in the order, they could not be varied or contradicted by parol. But, even after acceptance, the order would not purport to be a complete statement of the whole contract. Parol evidence would still have to be resorted to to show what these proposed “sketches” were to be, and it was entirely competent to prove the existence of...