Putnam v. Prouty

• Decision Date: 05 February 1913
• Docket Number: 81912
• Citation: 140 N.W. 93,24 N.D. 517
• Parties: PUTNAM v. PROUTY
• Court: North Dakota Supreme Court

140 N.W. 93

24 N.D. 517

PUTNAM v. PROUTY

No. 81912

Supreme Court of North Dakota

February 5, 1913

Appeal from District Court, Eddy County, E. T. Burke, J., presiding at the trial, and J. A. Coffey, J., presiding on the motion for new trial.

Action by S. N. Putnam against A. B. Prouty. From that portion of the judgment in defendant's favor adjudging him to be entitled to the possession of certain personal property, or the sum of $ 700 the value thereof, in case a delivery cannot be had, and also adjudging him entitled to damages in the sum of $ 1,400, together with the costs and disbursements; and also from an order denying his motion for judgment notwithstanding the verdict or for a new trial, plaintiff appeals.

Reversed and a new trial ordered.

Judgment and order reversed, and a new trial ordered.

Maddux & Rinker, and S.E. Ellsworth, for appellant.

A written contract which does not express the whole agreement between the parties, in relation to the subject-matter, or is incomplete in itself, and is supplemented by a further parol contract, proof may be offered as to the parol contract, when properly pleaded. Hutchinson v. Cleary, 3 N.D. 270 55 N.W. 729; Johnson v. Kindred State Bank, 12 N.D 336, 96 N.W. 588; Bower v. Jones, 26 S.D. 414, 128 N.W. 470; Plano Mfg. Co. v. Root, 3 N.D. 165, 54 N.W. 924; Sargent v. Cooley, 12 N.D. 1, 94 N.W. 576; Reeves & Co. v. Bruening, 13 N.D. 157, 100 N.W. 241; First Nat. Bank v. Prior, 10 N.D. 146, 86 N.W. 362; Merchants State Bank v. Ruettell, 12 N.D. 519, 97 N.W. 853; Alsterberg v. Bennett, 14 N.D. 596, 106 N.W. 49; Anderson v. Matheny, 17 S.D. 225, 95 N.W. 911.

The court, in charging the jury, must instruct upon the material law points in the case. Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1; Owen v. Owen, 22 Iowa 270; Forzen v. Hurd, 20 N.D. 42, 126 N.W. 224.

The agreement, having been in writing, supersedes all previous or contemporaneous negotiations in reference to same subject and is controlling. Rev. Codes 1905, § 533.

The oral agreement was in effect, on alteration of the written contract, and was never executed. Rev. Codes 1905, § 5382.

James A. Manly and Knauf & Knauf, for respondent.

Oral testimony may be given to show wherein a written contract is silent. Stephen's Digest of Ev. 163; Hand v. Ryan Drug Co. 63 Minn. 539, 65 N.W. 1081; Western Lime & Cement Co. v. Copper River Land Co. 138 Wis. 404, 120 N.W. 277; South Dakota C. R. Co. v. Smith, 22 S.D. 210, 116 N.W. 1120; Kennedy v. Falde, 4 Dak. 319, 29 N.W. 667; D. M. Osborne & Co. v. Stringham, 1 S.D. 406, 47 N.W. 409, 4 S.D. 593, 57 N.W. 776; Miller v. Way, 5 S.D. 468, 59 N.W. 467; Grand Forks Lumber & Coal Co. v. Tourtelot, 7 N.D. 587, 75 N.W. 901; Engel v. Scott & H. Lumber Co. 60 Minn. 39, 61 N.W. 825; De Rue v. McIntosh, 26 S.D. 42, 127 N.W. 534.

A part of the consideration for the contract was the contemporaneous oral agreement to furnish buildings, and extrinsic evidence was admissible to show same. 9 Cyc. 732; Dicken v. Morgan, 54 Iowa 684, 7 N.W. 145.

FISK, J. BURKE, J., took no part in the decision.

OPINION

FISK

The action is in claim and delivery, and at the commencement thereof all of the property described in the judgment appealed from was taken into plaintiff's possession, where it has remained ever since, the defendant not rebonding such property.

The litigation arises over a dispute as to the rights of the respective parties under the following agreement:

This agreement, made in duplicate, and entered into this first day of December, A. D. 1905, by and between A. B. Prouty, of the first part, and S. N. Putnam, party of the second part and owner of the real estate and personal property hereinafter mentioned,

Witnesseth, That the party of the first part rents of the party of the second part for a period of three years from date, i. e., from December 1, 1905, to December 1, 1908, the following described lands and premises, to wit: The S.E. 1/4 of sec. 32, twp. 149, r. 65; the N.E. 1/4 and the S. 1/2 of the N.W. 1/4 of sec. 6; the S. 1/2 of N.E. 1/4 and lots 1, 2, 3, 4, 5, in sec. 6; also the S.E. 1/4, sec. 6, all in township 148, range 65, in Eddy county, N. D., or so much thereof as said first party can and does farm in a good and husbandlike manner.

The party of the second part shall furnish all seed for sowing said land, pay $ 50 per year towards the cost of twine, and pay 2, 4, and 8 cents respectively for the threshing of his one half of the oats, wheat, and flax raised on said land.

The party of the first part shall do all work necessary in the raising of said crops, including the plowing, sowing, harvesting, and threshing said grain, and pay all expenses attended thereto except as heretofore provided, and shall put all grain into the granary. And upon demand by first party after he shall have fulfilled his part of the contract, the second party shall deliver to him the one half of all grain so raised on said land. There being 120 acres of land now plowed and ready for crop on said land, acres of corn fodder unhusked and 50 tons of hay on said premises, it is hereby agreed that the first party shall, December 1, 1908, have on said premises the same No. of tons of hay in stack, the same No. of acres of unhusked but harvested corn, all of which shall be turned over to said second party as a condition precedent to the fulfilling of this contract on the part of the first party herein. All hay put up by first party during the time of this lease on said land shall be divided as follows: Two thirds to first party and one third to second party. All fenced pasture on said land shall be for the exclusive benefit of the first party, and the pasture adjoining in township 148-66 shall be used jointly by first and second parties, first party to make all necessary repairs and keep all fences in as good condition as at the date of this lease.

There being now 34 head of cattle on said premises, said first party is to feed and care for said stock at his own expense and on said premises for said term of three years, at the end of which time, as compensation therefor, said second party agrees to deliver to first party the one half of all increase of said stock and the one third of the original herd, and should second party dispose of any of said stock prior to the expiration of this term, he shall pay first party in proportion to the time said stock has been kept by first party.

There being now 22 hogs on said premises, first party shall take all care of them, including the cultivation of at least 6 acres of corn for feed (all other feed except corn to be furnished by second party), and as compensation therefor he shall have one third of all hogs and one third of the increase thereof.

Twelve sheep being on said premises, first party agrees to care for them, feed them, and provide all things necessary for their maintenance, and as compensation therefor he shall have one half of all increase, and one half of the wool from said sheep.

Said first party, desiring to have and purchase certain personal property belonging to second party, has given his promissory note to second party for $ 800, to be paid as follows: "One third in one year, one third in two years, and one third in three years. When said note is paid in full, with interest, and all other conditions of this agreement are fulfilled as herein provided, said first party shall be the owner of the following described property: Two roan horses about thirteen years old, named Pete and Harry; one gray mare, named Flora, about nine years old; one brown mare about fourteen years old, named Daisey; one brown mare, named Maude, three years past; 1 Deering binder, 1 McCormick binder, 1 Kentucky drill, 1 gang plow, 1 mower, 1 rake, 1 disc. All of said property of every description being in the possession of and owned by second party to this contract till said conditions are fulfilled. Subject to proper use by first party.

A. B. Prouty,

S. N. Putnam,

Party of the second part.

The evidence discloses that defendant went into possession of the lands and personal property under said agreement, and remained in possession until the commencement of this action, April 3, 1907. At the time such action was commenced, there was due on the $ 800 note one installment amounting to one third of the principal, but the defendant contends that he was entitled to credit upon said note for an amount at least equal to such first installment; and the testimony on this issue is in conflict, the plaintiff contending that defendant was entitled to a credit of only $ 125.

The evidence discloses, without dispute, that in January, 1907, the 34 head of cattle were in a very deplorable condition, caused either by a lack of proper food or shelter; it appearing that out of the 34 head 17 died, and that their death was caused either by freezing or starving, defendant's contention being that their death was caused through the fault of the plaintiff in not providing a proper building for housing them. It is a conceded fact that, upon discovering the condition of such cattle, defendant voluntarily permitted plaintiff to take them into his possession, and remove them to a suitable place. A large mass of testimony was introduced relative to the condition of the cattle in January and to the cause thereof.

It is plaintiff's contention that, by the terms of the contract, the title and right to the possession of all the personal property, including the cattle, horses and farm machinery, was held and retained by him as security, not only for the payment of installments due on the $ 800 note, but also for the performance of all other conditions of the contract including proper care and provision for the cattle. Defendant seeks to exonerate himself from liability...