Stair v. Hibbs

• Decision Date: 27 June 1925
• Docket Number: No. 4901.,4901.
• Parties: STAIR et al. v. HIBBS.
• Court: North Dakota Supreme Court

52 N.D. 910

204 N.W. 621

STAIR et al.

v.HIBBS.

No. 4901.

Supreme Court of North Dakota.

June 6, 1925.

Rehearing Denied June 27, 1925.

Syllabus by the Court.

Parol evidence is inadmissible to vary or contradict the terms of a written contract as between the parties thereto.

A party must offer to prove the facts sought to be elicited from a witness before he can assign error upon an objection sustained to a question, the competency of which is not apparent upon its face.

In order that proof of an oral agreement, collateral to that expressed in the writing, and made prior to or at the time of the written contract, may be admissible, it must appear that such agreement related to a subject-matter distinct from that to which the writing relates.

A party, who has been induced by fraud to enter into a contract, on the discovery of the fraud, has the option of affirmance or rescission. Where he affirms the contract, he validates the entire contract. He cannot affirm in part and rescind in part.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Suit by Ray V. Stair and another, copartners doing business as Stair & Pederson, against Eva Hibbs. Judgment for plaintiffs, and defendant appeals. Affirmed.Joseph Coghlan and F. O. Hellstrom, both of Bismarck, for appellant.

O'Hare & Cox, of Bismarck, for respondents.

NUESSLE, J.

This is an appeal from a judgment of the district court of Burleigh county for the foreclosure of a conditional sales contract and a mechanic's lien.

The plaintiffs are engaged in the automobile business at Bismarck. They sell automobiles on deferred payments. They finance these transactions through a concern known as the General Motors Acceptance Corporation. On July 2, 1923, the plaintiffs sold a coupé to the defendant, Eva Hibbs, for $1,832.50. The defendant traded in, as a part payment on the car bought, a certain automobile which she then had in her possession, and in addition thereto paid the sum of $16.50 in cash. The balance of the purchase price she agreed to pay in 12 monthly installments of $93 each, the first of which was to be paid on August 2d. The sale contract provided that the property should not pass to the purchaser until the purchase price was fully paid. In event of default of any payment, the full amount remaining unpaid on the contract might, at the election of the seller, be declared immediately due and payable, and the seller might take possession of the property, sell the same at public sale, and apply the proceeds of such sale upon the purchase price unpaid. The contract further provided that-

“No warranties have been made by the seller unless indorsed hereon in writing.”

The coupé was delivered over to the defendant. The plaintiffs, under their arrangement with the General Motors Acceptance Corporation, indorsed the contract over to such corporation. There was a slight error in stating the amount of the initial payment and the corporation for that reason returned the contract with a direction that it be corrected to conform exactly to the transaction as had. The original contract had been filed in the office of the register of deeds. There would be, therefore, some difficulty in making the correction. Accordingly a new contract, identical in all respects with the original contract of July 2d, except as to the correction required, was drawn and signed by all the parties on July 12th. It appears that the defendant had some complaint to make of the car and brought it in on several occasions to have certain adjustments made. After the contract of July 12th was entered into, it was recorded, and the contract of July 2d was marked “canceled.” The defendant continued in possession of the coupé until the 29th day of December, 1923. She treated it as her own. During the time she had it, she ran it something over 6,000 miles. On the 29th day of December, the coupé was badly damaged in a collision, and was thereafter brought to the plaintiffs for repairs. The defendant made her monthly payments up to and including the month of March, 1924, so that at the time the action was brought there were but four payments remaining to be made. The plaintiffs repaired the coupé and the defendant refused to pay the amount demanded for the repairs. The plaintiffs claimed the right to possession of the coupé on account of a lien for the repairs so made. In May, 1924, the defendant having failed to make the payments as required by the sale contract, plaintiffs brought this action to foreclose on account of the default in such payments, and to foreclose the mechanic's lien as against the interest of the defendant in the car on account of the repairs so made. The defendant, answering the first cause of action, admitted the making of the contract sought to be foreclosed and her default thereunder. She set up, however, various counterclaims, among others, one for damages on account of breach of warranty, and a second for damages on account of fraud and false representations.

In her first counterclaim, she alleged that, when she bought the car in question, the plaintiffs made many and various express warranties and representations as to the character and quality thereof; that they agreed that, if it did not comply with the warranties and representations so made, to replace it with another which would do so; that such warranties and representations were not complied with; that the coupé was unsatisfactory; that accordingly she returned it and the contract was canceled; that the return of the coupé was accepted by the plaintiffs, who agreed to substitute in exchange for it a sedan, and the defendant agreed to accept such sedan and to pay the difference in price, which was not to exceed $100; that whatsoever was thereafter done by the defendant in making payments or in the use of the coupé was done by her under the terms of this agreement; that the plaintiffs had no sedan on hand at the time the agreement was made, and the defendant was to use, as her own, until such time as the sedan could be procured, the coupé originally bought, and that such use as she made thereof was under such agreement. She further alleged that plaintiffs failed and refused to provide her with a new car.

The defendant, for her second counterclaim, realleged the various warranties and representations as to the character and quality of the coupé set out in her first counterclaim. She further alleged that such representations were false and fraudulent and known by the plaintiffs to be so; that she relied upon and was induced to enter into the contract in question by such false and fraudulent representations on the part of the plaintiffs respecting the coupé, and demanded damages on account of such deceit. She also pleaded certain other alleged counterclaims, but these need not be considered for the reason that they were abandoned.

As to the plaintiffs, second cause of action, the defendant admitted that there had been an accident and injury to the coupé; that the same had been taken to the plaintiffs for repairs, and had been so repaired, and alleged that the contract in that respect was an express contract, under which she had promised and agreed to pay for such repairs the sum of $100, and that she was ready and willing to make such payments when the contract on the part of the plaintiffs had been fully performed and complied with. The plaintiffs replied to the answer of the defendant denying generally the matters and things therein set out excepting such as were consistent with the allegations of the complaint, and alleged further that, so far as any warranties and representations were concerned, the defendant was estopped to rely upon the same.

On the issues as thus made, the case came to trial before the district court of Burleigh county without a jury. Evidence was offered in support of the contentions of the respective parties and the trial court made its findings of fact in accordance with the contentions of the plaintiffs on the first cause of action and ordered judgment of foreclosure as prayed for. On the second cause of action, the trial court also found for the plaintiffs and ordered a foreclosure of the mechanic's lien, but only for the amount of $100, the amount admitted by the defendant. Judgment was entered on the order of the trial court made on these findings and conclusions. From such judgment, the defendant has perfected the present appeal to this court and demands a trial de novo.

On this appeal, we need give little attention to the second cause of action. The judgment was ordered for the amount which the defendant concedes that she agreed to pay. The plaintiffs are satisfied with the judgment as entered. If the judgment is correct as respects the first cause of action, the judgment as entered on the second cause of action will stand. If it is not, and the contentions of the defendant are sustained to the effect that she had rescinded the contract, and had returned, and was not the owner of the coupé which was repaired, then and in that event the judgment of foreclosure on the second cause of action must be reversed.

While there was a conflict in the evidence, the facts as stated in the opening paragraphs of this opinion were substantially proved. The defendant is an intelligent and competent woman. She understands, reads, and writes English. She admits she signed both the contracts voluntarily and that no subterfuge was resorted to to induce her to do so. Neither was anything done to prevent her from reading the contracts or informing herself of their contents. She says she signed the second contract believing that it involved the sedan and not the coupé and has no other excuse for having signed it. She admits that she used the coupé during all of the time from July to the time of the accident in December, and during that time ran it over 6,000 miles. She continued to make the monthly payments required by the contract during these months when she was using the car and...