Thiem v. Eckert, 24794.

• Decision Date: 31 December 1925
• Docket Number: No. 24794.,24794.
• Citation: 206 N.W. 721,165 Minn. 379
• Parties: THIEM et al. v. ECKERT et al.
• Court: Minnesota Supreme Court

206 N.W. 721

165 Minn. 379

THIEM et al. v. ECKERT et al.

No. 24794.

Supreme Court of Minnesota.

December 31, 1925.

Appeal from District Court, Sibley County; L. S. Nelson, Judge.

Action by Gustav Thiem and another against Frank Eckert and another. Verdict was directed against the defendants, and they appeal from an order denying a motion for a new trial. Reversed.

Albert D. Flor, of New Ulm, and P. W. Morrison, of Norwood, for appellants.

T. O. Streissguth, of New Ulm, and Bonniwell & Rogstad, of Gaylord, for respondents.

WILSON, C. J.

Plaintiffs, defendants, and one Hoppenstedt owned land extending along all the shore line of a meandered lake. It was drained by a judicial ditch. They were desirous of dividing the lake bottom, not in irregular shaped tracts as the law provided, but upon government division lines. They discussed the matter. One of their number, acting for all, consulted a lawyer and asked him to figure out a fair adjustment and draw the necessary paper and send to a certain bank. The lawyer did this. He prepared a partition deed meeting the requirements. He also prepared a very definite tabulated statement, submitted as a plan by which it was determined how the existing ditch assessment might be equalized. It provided: That appellant should pay $669.94; that Hoppenstedt should pay $672.72; that Thiem should receive $345.29; and that Friedrichs should receive $672.72. The deed and statement accompanied a letter to the bank, stating that the mutual transfers in the deed were a sufficient consideration, and that the figures on the statement could be used if the parties saw fit in settling among themselves. The parties called at the bank and executed the deed, which was promptly put on record. The deed contains this recital:

"Witnesseth, that the said parties for and in consideration of the mutual covenants herein contained do hereby agree each with the other to and they do hereby convey, release and quitclaim all the right, title and interest of each said parties in the real estate hereinafter described as specified in relation to each of the hereinafter enumerated tracts, that is to say."

This is followed by four paragraphs under which each of the persons is given a release from the others as to the lands therein described.

This action is to recover the $669.94. The complaint states the facts, and contains this language:

"That on the 6th day of August, 1921, said owners * * * made and executed a deed of partition, a copy of which is attached hereto, marked Exhibit A, and expressly made a part hereof, the respective wives of each of the parties thereto joining therein."

"That, in consideration of the execution and delivery of the said partition deed, the defendant herein promised and agreed to pay to the plaintiffs on demand the sum of $669.94."

The answer contains a general denial. A verdict was directed against defendant. He has appealed from an order denying a motion for a new trial.

Over the objection that oral evidence was inadmissible to vary the terms of the written instrument, plaintiffs were permitted to prove the oral promise to pay the amount of $669.94 as a part of the consideration for the deed. This is assigned as error. The deed is complete upon its face. It purports to have been the repository of all upon which the parties had agreed. It is competent to show by parol a consideration different from, but not inconsistent with, the one therein expressed. Keith v. Briggs, 32 Minn. 185, 20 N. W. 91. The court said, in Anderman v. Meier, 91 Minn. 413, 98 N. W. 327:

"If the consideration of a written contract be other than of a pecuniary nature and is expressly set out in the writing, the consideration so expressed might be conclusive on the parties; but where it is expressed in money the subject is always open to explanation by extrinsic evidence."

Pecuniary, as here used, means money. When parties reduce their contract to writing, the law presumes the instrument to be complete, to contain all their agreement, and it cannot be modified by parol evidence. There is a well-established exception to this rule, viz.: Parol evidence is always admissible for the purpose of disclosing the true consideration of the contract. This exception, however, has no application where the expressed consideration is not of a pecuniary nature. Johnson v. McClure, 92 Minn. 257, 99 N. W. 893, 2 Ann. Cas. 144. Recitals in a deed acknowledging the receipt of a specified sum of money substantially amount to a mere receipt, and are subject to oral explanation. The general rule, therefore, may be said to apply where the consideration is expressed in general terms and acknowledges the payment of a stated sum of money, in which event the true consideration may be shown. However, where the expressed consideration is more than a stated amount of money paid or to be paid, and is of a contractual nature, parol evidence is not admissible to vary its terms. Under such circumstances the recital in the instrument as to the consideration amounts to more than the mere acknowledgment of the payment of a money consideration, and then becomes of a contractual character. It then amounts to a recital of an agreement on the part of one party to the contract to do certain things in consideration of the agreement of the other party to do certain things on his part. Express agreements of this character, though recited in the instrument as a...