Tietjen v. Snead

Decision Date18 April 1890
Docket NumberCivil 270
Citation24 P. 324,3 Ariz. 195
PartiesA. P. TIETJEN, Plaintiff and Appellee, v. J. S. SNEAD, Defendant and Appellant
CourtArizona Supreme Court

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W Porter, Judge.

Affirmed.

Goodrich & Street, for Appellants.

The exhibit attached to the complaint shows that it is not a lease, but only a memorandum of a part of the transaction. Defendant alleged in his answer that it expressed only a part of the transaction and should have been allowed to prove that fact, as also what the full transaction and agreement was.

Parol evidence may be admitted when a part only of the contract was reduced to writing. 1 Greenleaf on Evidence, sec. 284a; 2 Wharton on Evidence, secs. 926, 927-1015; 2 Parsons on Contracts, sec. 550.

If defendant had proven the facts set up in his answer the whole fault would have been found to be with the plaintiff. The defendant would have cleared himself from the imputation of a breach of the contract. 1 Smith's Leading Cases, 8th ed 934-936, Wigglesworth v. Dallison.

Edwards & Buck, for Appellee.

Kibbey J. Wright, C. J., and Sloan, J., concurring.

OPINION

The facts are stated in the opinion.

KIBBEY J.

--This was an action by appellee against appellant for damages for the breach of a contract for a lease of a store-room in Phoenix. Appellant demurred to the complaint, and the demurrer was overruled. Appellant pleaded the general denial, and specially that the written memorandum of the contract did not embody the whole agreement, but that a part of it rested in parol, and alleging breach by appellant. A demurrer to the special plea was sustained, and the ruling excepted to. There was a trial by the court. Finding and judgment for appellee. Motion for new trial by appellant overruled. The errors assigned are the sustaining of the demurrer to appellant's special answer, and the admission and exclusion of certain evidence. The written memorandum, which is the foundation of appellee's cause of action, is as follows: "Exhibit A. Phoenix, Arizona, Feb. 21, '88. J. S. Snead hereby guaranty to furnish A. P. Tietjen with a lease for the whole store-room which stands upon the east part of lot eight (8), block twenty-one (21), in the city of Phoenix, Maricopa County, which said building fronts to the north side of Washington Street in said city. The above lease to be at least for the term of one year, at one hundred and forty dollars ($ 140.00) per month rent. But this guaranty shall not hold good in case the property is sold before that time. Lease to begin Oct. 1st, 1888. J. S. Snead, A. P. Tietjen." Appellant alleges in his answer that, at the time he and appellee entered into that agreement, the appellee and another were partners; that the agreement was made with the understanding that appellee and his partner should occupy the room for a particular purpose; that such occupancy was one of the main and essential conditions of the lease guaranteed; that, long before the day fixed for the commencement of the proposed lease, appellee and his partner dissolved their partnership, and none of the members of the firm desired the room in question for the purpose contemplated; that, at the time appellee demanded the lease in pursuance of the agreement he did so for himself alone, and for another purpose; that appellant, up to the 1st of October, 1888, was ready and willing to comply with his agreement as herein set forth.

We think the agreement sued on was complete and entire within itself. It was definite as to the subject-matter, price, and term; and any prior or contemporaneous verbal agreement must be deemed to have been merged in the written memorandum, and that cannot be varied by proof of such verbal understanding. The demurrer was properly sustained. This answer is further objectionable because the terms of the verbal part of the agreement are not alleged directly, but argumentatively and inferentially.

The statement of facts is not approved or signed by the judge of the district court. We cannot, therefore, consider it a part of the record. Rev. Stats. 1887, sec. 844; Wampler v. Walker, 28 Tex. 598; Witten v. Poindexter, 25 Tex.Supp. 378. The motion for a new trial is not, nor is the ruling thereon embodied in a bill of exceptions, as required by section 842; and hence we cannot consider any error in the ruling upon the motion. Nor can we consider any error that might have been urged as a ground for a new trial below, unless it had been so urged. See Sutherland v. Putnam, ante, p. 182, 24 P. 320, (at this term). The bill of exceptions in the transcript does not contain enough of the evidence given at the trial to...

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    ... ... v. John T. Noye Mfg. Co., 66 ... Minn. 156, 68 N.W. 854; McNaughton v. Wahl, 99 Minn ... 92, 116 Am. St. Rep. 389, 108 N.W. 467; Tietjen v ... Snead, 3 Ariz. 195, 24 P. 324; DeWitt v. Berry, ... 134 U.S. 306, 33 L.Ed. 896, 10 S.Ct. 536; Seitz v ... Brewers' Refrigerating Mach ... ...
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    ...in the following cases: Putnam v. Putnam, 3 Ariz. 182, 24 P. 320; Santa Rita etc. Co. v. Mercer, 3 Ariz. 181, 73 P. 398; Tietjen v. Snead, 3 Ariz. 195, 24 P. 324; v. Ariz. Co., 3 Ariz. 204, 32 P. 266; Miller v. Green, 3 Ariz. 205, 73 P. 399; Albuquerque Nat. Bank v. Stewart, 3 Ariz. 293, 30......
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    ... ... 200; ... In re Brown's Estate (Fite v. French), 52 Idaho ... 286, 15 P.2d 604 ... "In ... Herring v. Davis the court cited Tietjen v. Snead, 3 ... Ariz. 195, 24 P. 324, 325. The fourth section of the syllabus ... in that case is as follows: ... "'At the time the ... ...
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