S. F. Bowser & Co. v. Fountain, Nos. 18,913 - (147).

CourtSupreme Court of Minnesota (US)
Writing for the CourtHallam
Citation128 Minn. 198
PartiesS. F. BOWSER & COMPANY v. P. F. FOUNTAIN and Another.<SMALL><SUP>1</SUP></SMALL>
Decision Date15 January 1915
Docket NumberNos. 18,913 - (147).
128 Minn. 198
P. F. FOUNTAIN and Another.1
Nos. 18,913 - (147).
Supreme Court of Minnesota.
January 15, 1915.

Action in the district court for Clay county to recover $162 for goods sold and delivered. The case was tried before Nye, J., and a jury which returned a verdict in favor of defendants. From an

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order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.

Edgar E. Sharp, for appellant.

W. George Hammett, for respondent.


Plaintiff is located at Fort Wayne, Indiana. Defendants deal in automobile supplies at Hawley, Minnesota. On May 30, 1912, plaintiff's traveling salesman called upon defendants at Hawley and took their written order for a gasolene storage outfit. The order was, by its terms, subject to acceptance at Fort Wayne, Indiana. No time was specified in the writing either for its acceptance or for the shipment of the goods. Defendants' evidence is to the effect that the order was never accepted, save that shipment of the goods was made and invoices mailed to defendants June 28. The goods arrived at Hawley July 16. Defendants refused to receive them and plaintiff brought this action for goods sold. Defendants made two defenses: First, that the order was given upon a condition which was never performed, or a contingency that never happened; and, second, that in no event was the order accepted within a reasonable time. The court submitted both issues to the jury. The jury found for the defendants. Plaintiff moved in the alternative for judgment or for a new trial. Both motions were denied, and plaintiff appeals.

1. Whether this order, taken in connection with words or acts constituting an acceptance, was intended to form a complete contract between the parties, we need not determine. Under the decisions on this subject, which are collected in McLoone v. Brusch, 119 Minn. 286, 138 N. W. 35, this proposition may not be free from doubt. We may assume, however, that such was the intention of the parties.

It is an elementary proposition "that where, in the absence of fraud, accident or mistake, the parties have deliberately put their contract into a writing which is complete in itself, and couched in such langague as imports a complete legal obligation, it is conclusively presumed that they have introduced into the written instrument all material terms and circumstances relating thereto."

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Wheaton Roller-Mill Co. v. John T. Noye Mnfg. Co. 66 Minn. 156, 159, 68 N. W. 854, 855.

It is also well settled that "where a contract is silent as to the time of performance, the law implies that it is to be performed within a reasonable time; and, if the contract be in writing, parol evidence of an antecedent or contemporaneous oral agreement is inadmissible to vary the construction to be thus legally implied from the writing itself." Liljengren F. & L. Co. v. Mead, 42 Minn. 420, 424, 44 N. W. 306, 308.

Another rule equally well settled, however, is that, in case of a simple contract in writing, it is competent to show by parol that, notwithstanding the delivery of the writing, the parties intended and agreed that it should be operative as a contract only upon the happening of a future contingent event, or the performance of a condition. Westman v. Krumweide, 30 Minn. 313, 15 N. W. 255; Merchants Exchange Bank v. Luckow, 37 Minn. 542, 35 N. W. 434; Smith v. Mussetter, 58 Minn. 159, 59 N. W. 995; Mendenhall v. Ulrich, 94 Minn. 100, 101 N. W. 1057; Samuel H. Chute Co. v. Latta, 123 Minn. 69, 142 N. W. 1048. The purpose and effect of such evidence is to prove a condition precedent to the attachment of any obligation under the written instrument. This is not to vary the written instrument, but to prove that no contract was ever made, that its obligation never commenced. Smith v. Mussetter, 58 Minn. 159, 59 N. W. 995. This doctrine is not inconsistent with Liljengren F. & L. Co. v. Mead, supra, for the evidence there considered did vary the implied terms of the contract. Neither is Graham v. Savage, 110 Minn. 510, 126 N. W. 394, 136 Am. St. 527, 9 Ann. Cas. 1022, inconsistent with the doctrine above stated. In that case the court simply held that parol evidence is not admissible to show that a writing which purports to be a complete written contract is not to be observed according to its terms, but is in fact a sham, designed to be used merely for the purpose of deceit and fraud.

We come now to the question whether there is in this case evidence, to submit to the jury, of an agreement that the delivery of the order was conditional, and that it should become operative only on the happening of a contingency or the performance of a condition.

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We think there is. The testimony of the defendants was to the effect that plaintiff's salesman was advised that defendants wanted the outfit for the installation in a garage then under construction; that they...

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