Shake v. Payette Valley Produce Exchange

• Decision Date: 17 April 1926
• Parties: R. H. SHAKE and A. C. PATHEAL, Respondents, v. PAYETTE VALLEY PRODUCE EXCHANGE, Appellant
• Court: Idaho Supreme Court

245 P. 683

42 Idaho 403

R. H. SHAKE and A. C. PATHEAL, Respondents, v. PAYETTE VALLEY PRODUCE EXCHANGE, Appellant

Supreme Court of Idaho

April 17, 1926

FACTORS-BROKERAGE CONTRACT-SUBSEQUENT ORAL AGREEMENT-EVIDENCE-PRINCIPAL AND AGENT-PLEADING AS ESTOPPEL-INSTRUCTIONS.

1. In action on brokerage contract, giving defendant broker right to sell fruit crop for one year and reserving to plaintiff seller privilege of stating at what time and to whom produce should be sold, where complaint alleged price was fixed at delivery and was denied in answer, such question was one of fact for jury.

2. Under brokerage contract for sale of fruit crops, reserving in seller right to designate at what time and what price products should be sold, broker, having received produce under oral directions completing written agreement, was bound to sell for that price and no other.

3. In action on brokerage contract for sale of fruit crop reserving right in sellers to determine when and at what price pro- duce should be sold, jury was justified in finding for seller, where evidence supported finding that they gave specific directions as to price at time of delivery.

4. Where brokerage contract for sale of fruit crop reserved right in seller to state at what time and what price produce should be sold, admitting in evidence oral agreement subsequently entered into relative to price was proper in action on contract, as being in completion of written contract and not varying its terms.

5. Subsequent oral agreements to complete written contract may be shown where contract was incomplete and certain matters were left to be fixed.

6. In action on brokerage contract for sale of fruit crop reserving right in sellers to state when and at what price produce should be sold, instruction advising jury that question for consideration was whether broker's authorized agents agreed on price with sellers at time of delivery was correct.

7. Where produce company having, through its sales agents, made brokerage contract for fruit crop, giving right to seller to set time and price for sale of produce, had accepted benefits of transaction by filing cross-complaint to action on contract, seeking to retain its commissions on sale of fruit it cannot repudiate contract as to agreement between its agents and sellers relative to price.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Action to recover balance due for apples delivered pursuant to the terms of two written contracts. Judgment for plaintiffs. Affirmed.

Judgment of the lower court affirmed. Costs awarded to respondents.

Norris & Sutton, for Appellant.

A valid and legal consideration is essential to the validity of any contract. (1 Williston on Contracts, sec. 18.)

It is not permissible to vary the terms of a written contract by parol evidence, without first laying a proper foundation for such action. (Hurt v. Monumental Mercury Min. Co., 35 Idaho 295, 206 P. 184; Mackenzie v. Hodgkin, 126 Cal. 591, 77 Am. St. 209, 59 P. 36.)

George Donart and Morgan & Smith, for Respondents.

Where a corporation receives and retains the benefits of an unauthorized transaction on the part of its agent, such contract amounts to a ratification, and the corporation is estopped to deny the authority of its agent in making the contract. (Reversion Fund & Ins. Co. v. Maison Cosway, Ltd., 1 K. B. 364 (1913), Ann. Cas. 1913E, 1106; Davenport v. Burke, 30 Idaho 599, 167 P. 481; Pettingill v. Blackman, 30 Idaho 241, 164 P. 358; Hammitt v. Virginia Min. Co., 32 Idaho 245, 181 P. 336; Okmulge Coal Co. v. Hinton, 95 Okla. 92, 218 P. 319; Carlquist v. Quayle, 62 Utah 266, 218 P. 729; Stillwell v. Meriam Co., 127 Wash. 116, 219 P. 836.)

Where a written contract is incomplete on its face and leaves certain matters to be fixed later by parol, parol evidence is permissible to show the entire contract. (Smith v. Bond, 56 Okla. 112, 155 P. 1116; Strickland v. Johnson, 21 N.M. 599, 157 P. 142; Rawlings v. Ufer, 61 Okla. 299, 161 P. 183; O. K. Transfer & Storage Co. v. Neill, 59 Okla. 291, 159 P. 272, L. R. A. 1917A, 58; Shire v. Farmers' State Bank, 112 Kan. 690, 213 P. 159; Kinsley Milling Co. v. Waite, 112 Kan. 809, 213 P. 160; Schmershall v. Foster, 37 Idaho 247, 215 P. 979.)

The rule prohibiting the introduction of parol evidence to vary the terms of a written instrument does not apply to the extent that it will exclude parol evidence of subsequent agreements, even though modifying the original agreement. (4 Wigmore on Evidence, sec. 2441; Overstreet v. Merritt, 186 Cal. 494, 200 P. 11; Dike v. Martin, 85 Okla. 103, 204 P. 1106; Shimizu v. Norjiri, 59 Cal.App. 375, 211 P. 40.)

GIVENS, J. William A. Lee, C. J., and Wm. E. Lee, Budge and Taylor, JJ., concur.

OPINION

GIVENS, J.

Appellant, Payette Valley Produce Exchange, through its sales agents, Stewart & Branch, entered into a brokerage contract with R. H. Shake and A. C. Patheal, respondents, for their fruit crops. The fruit was delivered to appellant and after deducting all offsets to which appellant was entitled by way of commissions and money advanced, there remained due to respondents on the basis of the price as claimed by respondents to have been fixed, the sum of $ 2,148.75. Defendant's motion for nonsuit was denied and the jury returned a verdict in favor of respondents.

The written contract provided that appellant was to have the exclusive right to sell, transfer, assign or exchange the produce mentioned for a period of one year, subject to certain conditions, the main provision material in this case being as follows:

"The party of the second part agrees that the party of the first part shall have the sole and exclusive privilege of stating at what time and to whom and at what prices this produce shall be sold."

The written contract did not provide for delivery of the fruit at any specified time. The complaint alleged that at the time of delivery the price was fixed. The answer denied that the respondents designated to whom and at what price the apples should be sold. This was a question of fact for the jury and by their verdict the jury found adversely to appellant. By the terms of the agreement appellant was liable for the purchase price when...