Seal Oil Co. v. Roberson

• Decision Date: 15 October 1935
• Docket Number: Case Number: 25945
• Parties: SEAL OIL CO. et al. v. ROBERSON
• Court: Oklahoma Supreme Court

1935 OK 995

51 P.2d 801

175 Okla. 140

SEAL OIL CO. et al. v. ROBERSON

Case Number: 25945

Supreme Court of Oklahoma

Decided: October 15, 1935

Syllabus

¶0 1. Appeal and Error--Plaintiff Bound by Theory of Case as Action on Contract as Tried.

When the allegations of plaintiff's petition show an action on contract and the cause is so treated by the parties and the trial court, plaintiff must recover, if at all, on contract.

2. Contracts--Evidence -- Erroneous Admission of Evidence of Contract Differing From That Alleged.

In an action on contract, evidence of a contract containing terms materially different from that alleged in the pleadings is irrelevant to the issue, and unless such evidence is limited for some other proper purpose, it is error to admit it over proper objection.

3. Trial--Contracts--Duty of Court on December to Evidence to Determine Whether Parol Contract Was Superseded by Written Contract.

On demurrer to the evidence it is the duty of the court to determine whether a parol contract sued on is superseded by a written contract although no objection is made to the evidence of it.

4. Same--Demurrer to Evidence Showing Contract Unenforceable Should be Sustained.

On demurrer to the evidence in an action purely on a contract, if the evidence shows the contract is unenforceable, it is the duty of the court to sustain the demurrer.

5. Contracts--Evidence -- Negotiations Terminating in Written Contract--Parol Evidence Varying Terms of Contract.

When parties meet and negotiate with each other for the purpose of making contractual obligations and discuss the proposed terms and conditions of the obligations to be made, with the intention of putting all of the terms of their agreement in writing, and no separate contract is contemplated, and when their negotiations finally terminate in a written contract, stipulating fully and definitely the acts each party is to perform, and which written instrument is a complete, clear, explicit and unambiguous contract as to the things on its face it contemplates, and there is nothing in it indicating any other agreement between the parties connected with its subject-matter, then the written contract is the sole depository of the agreement of the parties on all matters which were the objects of their negotiations, and such written contract can neither be altered, varied, contradicted, enlarged, narrowed, nor added to by parol evidence, except in case of accident, mistake, or fraud, when the remedies are other than an action on a parol agreement omitted from the written contract.

Appeal from District Court, Carter County; Asa E. Walden Judge.

Action by Hattie Roberson against R. M. Parish, doing business under the trade name of Seal Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. W. Schenk, for plaintiffs in error.

Sigler & Jackson, for defendant in error.

PER CURIAM.

¶1 This action was commenced by Hattie Roberson, as plaintiff, against Seal Oil Company and R. M. Parish, as defendants, but it appears that R. M. Parish transacted business under the trade name of Seal Oil Company, and hence he is the sole party defendant. In this opinion we will allude to the parties as they appeared in the lower court.

¶2 The plaintiff, in her petition, in substance, alleges that she is without experience in business matters, and that the defendant is a very shrewd business man with many years of experience; that plaintiff was the owner of a lot in Ardmore, Okla., used as a filling station, and that she had been renting it to the defendant for a number of years; that, on September 12, 1931, she executed a contract renting this lot to R. L. Bowman ann Cecil Crosby for a term of ten years beginning October 1, 1931, and that after the plaintiff had executed that lease, the defendant approached the plaintiff to lease the lot, and that after the plaintiff informed the defendant that she had leased the lot to the other parties, the defendant represented to the plaintiff that her contract with Bowman and Crosby was not binding on her, and that if she would lease the lot to him, he would protect her against any lawsuit for damages which might be filed by Bowman and Crosby against her, and that if suit was filed by them against her for damages for breach of their lease, he would defend such suit and pay all of the expense connected with it and pay any judgment which might be rendered against her in such suit, and that on account of plaintiff's inexperience and ignorance of business affairs and on account of the representations of the defendant, the plaintiff was induced to and did, on September 15, 1931, execute to the defendant a contract leasing this lot to him; that because of plaintiff's previous business transactions with the defendant and her confidence in him, she relied upon him to draw a contract containing the provision obligating the defendant to protect her against the apprehended lawsuit by Bowman and Crosby and pay her attorney's fee in that event, and that when the contract was brought to her by the defendant she presumed the contract contained that provision, and that if the contract does not contain that provision, it was left out by the defendant, and that relying upon the defendant and because of her belief that he would draw the lease contract in compliance with their agreement, she signed it; that one of the considerations for her execution of that lease was the agreement of the defendant that he would protect her against any litigation she might have with Bowman and Crosby; that thereafter Bowman and Crosby brought an action against the plaintiff for breach of her lease contract with them and recovered judgment against her for $ 500 and costs, and that the plaintiff was forced to pay an attorney's fee of $ 75 in the defense of that action, and that the defendant refused to pay the amount of that judgment, cost and attorney's fee, and wholly failed to pay the consideration for her lease to him, to wit the expense of said litigation and said judgment, and she prays for judgment against the defendant for the amount of that judgment, interest, costs and attorney's fee.

¶3 To plaintiff's petition the defendant pleaded a general denial, and in addition special matter which for the purpose of this decision it is not necessary to recite.

¶4 Neither was the petition nor the special answer tested by demurrer. Had this been done and the proper rulings thereon been obtained, the issues in this case would have been made clear, and the duties of counsel, the jury and the court would have been easier.

¶5 This case was considered and treated by the parties and the trial court as purely an action for breach of an express contract of indemnity, and from an examination of the allegations and the proof we reach the same conclusion. Some allegations in the petition possess some elements of an action for deceit based on fraud, such as the representations by the defendant that the lease to Bowman and Crosby was not binding on the plaintiff and that the defendant had an option for a new lease or renewal, but the petition is clearly lacking in other indispensable allegations to constitute such a case, among others being the lack of an allegation that the alleged statements of the defendant were false or the allegations of facts showing the same to be false. The allegation that it was intended that the provision for indemnity was to be incorporated in the written lease, and that if it was left out it was omitted by the defendant, and proof to that effect did not constitute actionable fraud, inasmuch as the evidence shows that the plaintiff is a woman of fair education and can read. Guthrie & W. R. Co. v. Rhodes, 19 Okla. 21, 91 P. 1119; McNinch v. Northwest Thresher Co., 23 Okla. 386, 100 P. 524; Colonial Jewelry Co. v. Bridges, 43 Okla. 813, 144 P. 577; White Sewing Machine Co. v. McCarty Furniture Co. 58 Okla. 545, 160 P. 495; Ozark States Trust Co. v. Winkler, 84 Okla. 7, 202 P. 12. We consider these features of the petition and the evidence in that respect only for the purpose of determining what is plaintiff's cause of action, inasmuch as there was some evidence of fraud, and plaintiff's counsel in their brief at times touch on fraud, but we see nothing in it but a case for breach of express contract, and will consider and determine the legal rights of the parties in such a case.

¶6 The plaintiff is the owner of a lot in Ardmore, Okla., for a long time used as a filling station. On October 12, 1923, she executed a lease on this lot to one J. D. Moorhead for a term of five years, with a provision that the lease should not be considered renewed except by agreement of the parties thereto, and with a further provision that at the expiration of the lease J. D. Moorhead should have the option of renewing or entering into a new lease on the lot, the terms of the renewal or new lease to be agreed upon by the parties, but the lease is silent as to the amount to be paid for the renewal or new lease and the length of the term of the same. After the expiration of this lease and after the death of J. D. Moorhead, the defendant purchased the improvements on this lot, owned by Moorhead, from his heirs, and the defendant continued to occupy the lot as a tenant of the plaintiff from the time of his purchase of those improvements to the time of the trial of this case, and, during that time, paid her a different price for the rental of the lot from that provided for in the Moorhead lease. There is no evidence of the renewal of the Moorhead lease. On September 12, 1931, the plaintiff leased in writing this lot to R. L. Bowman and Cecil Crosby for a term of ten years, beginning on October 1, 1931. On September 15, 1931, the plaintiff leased in writing the same lot to Seal Oil Company for a term beginning on October 1, 1931, and terminating on October 1, 1942, with a covenant of warranty. The defendant transacted business under the trade name of Seal Oil Company and continued...