S. Spiegal & Son v. Alpirn
| Decision Date | 26 November 1921 |
| Docket Number | 20770 |
| Citation | 185 N.W. 415,107 Neb. 233 |
| Parties | S. SPIEGAL & SON, APPELLEE, v. A. B. ALPIRN, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed.
REVERSED.
Henry Monsky, for appellant.
Smith Schall & Howell, contra.
The plaintiff, S. Spiegal & Son, on June 29, 1917, sold the defendant, A. B. Alpirn, a quantity of scrap iron under a written contract of purchase and sale executed by both parties. This action was brought by the plaintiff to recover the purchase price of a portion of the iron which was delivered to the defendant under this contract, and to recover damages based upon the alleged refusal of the defendant to accept and pay for the remainder of the iron included in said contract.
The plaintiff's petition was upon two causes of action. On the first, which was for the purchase price of the iron actually delivered, it is conceded that the plaintiff is entitled to $ 5,159.30. The defendant, however interposed a counterclaim to the first cause of action, in which he set up a previous contract, executed November 11, 1916, in which the plaintiff had agreed to sell and deliver to the defendant 150 tons of scrap iron at $ 15 a ton, but which the defendant claims was not fulfilled. The defendant prayed for $ 3,200 as damages upon his alleged set-off, and asked that it be credited upon the $ 5,159.30 due the plaintiff on the first cause of action.
The plaintiff's second cause of action was based upon the fact that the defendant was not willing to take and pay for the remainder of the iron which he had contracted to buy under the contract of June 29, 1917, unless the plaintiff would allow him the $ 3,200 credit upon the iron already delivered; that his refusal to pay the $ 5,159.30 in full, without deduction, for the iron already delivered was a breach of the contract; that the market for iron had declined, and that the plaintiff was entitled to recover the difference between the contract price and the market price of the iron that remained undelivered under the contract of June 29, 1917.
The jury found specially that the plaintiff was entitled to recover $ 350 on the second cause of action, and that the defendant was not entitled to recover upon his counterclaim to the first cause of action. A general verdict was returned in favor of the plaintiff for $ 5,540.30, from which verdict and the judgment entered thereon the defendant appeals. The controversy in this case is with regard to the validity of the defendant's counterclaim to the plaintiff's first cause of action, and as to the plaintiff's right to recover upon the second cause of action. Considering first the issue arising upon the counterclaim, the plaintiff's reply admits that the plaintiff did not deliver to the defendant a part of the iron referred to in the contract of November 11, 1916. As a defense to the defendant's claim for damages by reason of the plaintiff's failure to deliver under that contract, which is the gist of the counterclaim, the plaintiff alleged that when the contract of June 29, 1917, was made, "it was agreed between the parties that in consideration of the sale of the iron contained in the contract in suit for $ 28 a ton that any and all differences, disputes and claims of the parties hereto, one against the other, arising out of the transaction concerning the contract of November 11, 1916, should be settled, and that said contract should thereby be annulled and abandoned."
Upon the issue as to whether there had been a release of the defendant's cause of action set up in his counterclaim, the court, over the defendant's objections, admitted testimony to the effect that, in the course of the conversations between the parties which preceded the execution of the contract of June 29, 1917, the defendant offered $ 22 a ton for the plaintiff's iron, while the plaintiff asked $ 35 a ton; that the defendant advanced his claim for reimbursement of his loss under the November contract and urged that he was entitled to a lower price on that account; that the plaintiff denied liability for such loss, but that finally a mutual concession was made, and the price of the iron under the June contract was fixed at $ 28 a ton, partly in consideration of the settlement and release of defendant's claim for damages under the November contract.
The defendant objected to the introduction of this testimony on the ground that parol evidence is inadmissible to contradict or vary the terms of a written instrument; that the contract of June 29, 1917, is complete in itself and unambiguous; that it sets out the mutual promises of the parties--those of the one as consideration for those of the other--without including any reference to the release of claims under the November, 1916, contract, and that the admission of the parol evidence complained of, in effect, reads into the contract a provision that varies and alters its express provisions.
The contract of June 29, 1917, which was signed by both parties, recited that the plaintiff sold and agreed to deliver to the defendant, according to the conditions of the contract, "the various quantities and grades of scrap iron, hereinafter more specifically described, to-wit, from 150 to 200 tons of mixed wrought iron" (describing it in detail); that "the agreed purchase price of the said property is $ 28 per ton f. o. b. cars Missouri Pacific tracks, Omaha;" that plaintiff should have the option to deliver any amount of the various items of the different grades of iron up to the maximum, but not less than the minimum; that delivery should commence not earlier than July 1, 1917, but that all iron should be delivered prior to September 1, 1917. It further provided that defendant would accept the iron according to the terms of the contract and pay the purchase price as follows: $ 1,000 on the date of the contract, the receipt of which was acknowledged, which was to be held as a deposit to insure faithful performance; that, as each car was loaded and weighed, the defendant was to pay for it at once, the $ 1,000 deposit being held by plaintiff to apply on the last car.
The plaintiff's plea of release of the defendant's claim for damages under the November contract and the testimony in support thereof introduce a new element into the transaction represented by the contract of June 29, 1917. That contract, standing alone, evidences a sale of a specified quantity of iron for which the plaintiff is to receive, and the defendant is to pay $ 28 a ton. With the new element injected into it by the plaintiff's plea, it becomes a contract for the sale of a specified quantity of iron for $ 28 a ton plus the release of a prior claim of the defendant against the plaintiff, an additional consideration not mentioned in the writing.
Counsel for the defendant points to the distinction between the contract of June 29, 1917, in which the consideration, or promise of the defendant to pay $ 28 a ton for the iron in installments as delivered, is of a contractual nature, and an instrument, like a deed, in which the recital of the consideration is a mere acknowledgment of the receipt of a money consideration. The general rule is that where the statement in a written instrument as to the consideration is more than a mere statement of fact or acknowledgment of payment of a money consideration, and is of a contractual nature, parol or extrinsic evidence is not admissible to vary or contradict the consideration expressed. 17 Cyc. 661, 662; 4 Wigmore, Evidence, sec. 2433; 10 R. C. L. 1042-1044, secs. 236-238. In appellant's brief several cases are cited in which the foregoing rule has been applied, and parol evidence excluded, under circumstances somewhat analogous to those in the instant case. Baum v. Lynn, 72 Miss. 932, 18 So. 428; Sandage v. Studabaker Bros. Mfg. Co., 142 Ind. 148, 41 N.E. 380; Parker v. Morrill, 98 N.C. 232, 3 S.E. 511; Hei v. Heller, 53 Wis. 415, 10
N.W. 620; Arnold v. Arnold, 137 Cal. 291, 70 P. 23; Wessell v. Havens, 91 Neb. 426, 136 N.W. 70.
Counsel for plaintiff argue that the rule just stated has no application to the instant case; that the contract of June 29, 1917, is not sought to be varied, but that the parol evidence relative to the alleged release of the defendant's rights under the November contract was offered as a defense to the defendant's counterclaim, and its admissibility must be tested only by the November contract and the rights existing thereunder. It is difficult to perceive upon what theory that proposition can be maintained. The plaintiff's first cause of action is for the purchase price of iron delivered to the defendant under the contract of June 29, 1917. The defendant counterclaims by setting up a claim for damages for the plaintiff's breach of the November, 1916, contract in failing to deliver iron thereunder. The plaintiff meets the counterclaim by pleading in the reply that at the meeting of the parties when the June, 1917, contract was entered into "it was agreed between the parties that in consideration of the sale of the iron contained in the contract in suit for $ 28 per ton" the claim of the parties arising out of the November, 1916, contract should be settled and released.
The defense raised by the reply is, in other words, that although the parties entered into a written contract on June 29, 1917, which is presumed to have embodied their complete agreement and the result of all their prior negotiations relative to the subject-matter, and although the contract, upon its face, appears to contain and express all that is necessary to constitute a contract for the purchase and sale of a stipulated quantity of iron at a stipulated price, yet there was, in reality, another consideration for...
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