Webster v. Harris

• Decision Date: 03 October 1950
• Citation: 222 P.2d 644,189 Or. 671
• Parties: WEBSTER et al. v. HARRIS.
• Court: Oregon Supreme Court

222 P.2d 644

189 Or. 671

WEBSTER et al. v. HARRIS.

Supreme Court of Oregon.

October 3, 1950

E. R. Woods and Walter T. Durgan, of Corvallis, for appellant.

Orval N Thompson, Albany (Weatherford & Thompson, of Albany, on the brief) for respondents.

Before LUSK, C. J and BRAND, BAILEY, HAY, LATOURETTE and WARNER, JJ.

HAY Justice.

Action for damages for breach of a contract for the sale of logs.

Under date of March 7th, 1946, the plaintiff, M. M. Webster, and the defendantGerald Harris, made and executed an agreement in writing as follows:

'Wren, Oregon, March 7, 1946

'Gerald Harris will sell four million feet of logs, delivery at rate of 1 1/2 million feet per year, to be delivered to M. M. Webster's sawmill located at Harris Station.

'M. M. Webster will buy said logs at market price, or woods run ceiling price and pay for said logs by lumber scale the tenth of each month for lumber marketed the previous month.

'Seller may change from pay on lumber scale to pay on log scale.Logs would be scaled as delivered at mill in lengths 16 to 56 feet long.

'M. M. Webster

'Gerald Harris'

PlaintiffPansy Webster is the wife of plaintiffM. M. Webster.She was not a party to the agreement.We shall, for convenience, refer to plaintiffM. M. Webster as if he were sole plaintiff.

The complaint, among other matters, alleges as follows: The contract between the parties was partly in writing, as above, and partly oral.It was orally agreed that the logs referred to in the writing were to be cut from a particular tract of timber belonging to defendant.From such tract, defendant cut and delivered not in excess of 300,000 feet of merchantable logs.Defendant refused to deliver any more logs from the particular tract which was the subject of his oral agreement, although there remained 3,700,000 feet of good merchantable timber thereon.Plaintiff has performed his part of the contract to date, and is ready, willing, and able to perform the remainder.By reason of defendant's breach of contract in refusing to cut and deliver any more timber from said tract, plaintiff has suffered damages in the sum of $29,600, for which he asked judgment.

Defendant demurred to the complaint on the general ground that it failed to state facts sufficient to constitute a cause of action.The demurrer was overruled, and the defendant thereupon answered by general denial, with affirmative allegations to the effect that he has been at all times ready, willing, and able to perform his part of the contract, but has been prevented from doing so by certain specified acts of plaintiff.Because of such alleged acts, defendant claimed to have been damaged in the sum of $14,044.06, for which he asked judgment.He also asked judgment for $2,565.42, the alleged unpaid balance of the agreed price for logs actually delivered by him under the contract.Plaintiff's reply contained appropriate denials of the new matter in the answer.

Trial by jury resulted in a verdict in favor of plaintiff in the sum of $13,457.58.Judgment was entered thereon, and defendant has appealed therefrom to this court.

The defendant's chief assignment of error is the overruling of his demurrer to the complaint.He contends that the written agreement between the parties constituted an integrated contract, and that, as between the parties thereto, it is conclusively presumed, in the absence of fraud, mistake of fact, or illegality in the subject matter, that the writing contains their whole engagement.

'An agreement is integrated where the parties thereto adopt a writing or writings as the final and complete expression of the agreement.An integration is the writing or writings so adopted.'1 Restatement of the Law of Contracts, p. 307, § 228.See also9 Wigmore on Evidence, 3rd Ed., p. 76, § 2425.

Consideration of the language of the written agreement leaves no doubt as to the intention of the parties.Defendant agreed to sell and plaintiff to buy four million feet of logs.Time and place of delivery, specifications as to length of logs, and price and terms of payment, are all specified.The parties have raised no question of mistake or imperfection in the writing.The writing, in our opinion, was a completely integrated contract.The alleged oral agreement pleaded by plaintiff conflicts with and contradicts the written contract.Under the latter, defendant had the right to fulfil his obligation by delivery of logs from any source available to him from time to time as deliveries were due.The oral agreement would have confined him to one particular source of logs.Cf.Forsyth Mfg. Co. v. Castlen,112 Ga. 199, 37 S.E. 485, 81 Am.St.Rep. 28, 38;McCann v. Glynn Lumber Co.,199 Ga. 669, 34 S.E.2d 839, 843.

The written contract appearing on its face to be complete, and no issue having been made respecting its validity, or that it embodied a mistake or imperfection, it is to be considered as containing all of the terms of the agreement, and no evidence thereof was admissible between the parties other than the writing itself.§ 2-214, O.C.L.A.;Sund & Co. v. Flagg & Standifer Co.,86 Or. 289, 302, 168 P. 300;Marks v. Twohy Bros. Co.,98 Or. 514, 527, 194 P. 675;Hyland v. Oregon Agricultural Co.,111 Or. 212, 217, 225 P. 728.The parol evidence rule embodied in the code section just cited is not merely a rule of evidence, but is one of substantive law.Taylor v. Wells, Or.,217 P.2d 236, 241, and cases therein cited;Cohn v. Dunn,111 Conn. 342, 149 A. 851, 70 A.L.R. 740, 742.The rule obtaining when, because of ambiguous language in an instrument, the court is required to construe it, under which evidence may be received of the circumstances under which the instrument was made, § 2-218, O.C.L.A., has no bearing here, as the contract in suit is not ambiguous, and there is no room for judicial construction thereof.Taylor v. Wells, supra.Plaintiff's case was based upon the pleaded oral modification of the integrated written contract, and, such modification being inadmissible as a matter of substantive law, the complaint failed to state facts sufficient to constitute a cause of action, and the demurrer should have been sustained.

There is a further vital objection to the sufficiency of the complaint.Section 2-909, O.C.L.A., provides that an agreement which by its terms is not to be performed within a year of the making thereof 'is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent'.This court has held that this section of the code means exactly what it says.If the contract does not meet with the requirements of the statute it is a nullity in all respects and for all purposes.Bagot v. Inter-Mountain Milling Co.,100 Or. 127, 133, 196 P. 824;Brown v. Austin,102 Or. 53, 58, 201 P. 543;Wurzweiler v. Cox,138 Or. 110, 113, 5 P.2d 699;2 Page, Law of Contracts, p. 2403, § 1400;37 C.J.S., Frauds, Statute of, § 223, page 724.'The Oregon statute of frauds is more comprehensive in its language and more drastic in its application than most of the statutes of other states.'Craswell v. Biggs,160 Or. 547, 563, 86 P.2d 71, 77.In order to conform to the requirements of the statute, the written memorandum must be complete and must include all of the terms actually agreed upon between the parties.4 Page, Law of Contracts, p. 3842, § 2184.The plaintiff was obliged to rely upon the alleged oral agreement that the logs were to be cut from a particular tract.The whole contract, not being one which was capable of being performed within a year from its date, was within the statute of frauds and the whole of it should have been in writing.2 Page, op. cit., p. 2306, § 1335.The plaintiff was faced with a serious dilemma.If he should fail to plead the oral modification of the written contract, he would state no cause of action whatever.If he should plead it, the parol evidence rule would prevent him from using extrinsic evidence to prove that the writing did not comprise the complete agreement.And if it were permissible for him to use extrinsic evidence in that connection, the contract as so proved would not satisfy the statute of frauds.4 Page, op. cit., § 2184.

It being apparent upon the face of the complaint that the contract sued upon was within the statute of frauds and did not comply therewith, the defendant's general demurrer was sufficient to invoke that statute.Commercial Credit Corp. v. Marden, 155 Or. 29, 39, 62 P.2d 573, 112 A.L.R. 931;1 Page, op. cit., Supplement, p. 909, § 1420;37 C.J.S., Frauds, Statute of, § 267, page 789.The record does not indicate whether or not the statute of frauds was relied upon in submission of the general demurrer to the trial court, but in any event it was specifically raised in support of such demurrer in oral argument before this court.The objection that the complaint does not state facts sufficient to constitute a cause of action is never waived.It may be raised for the first time in the appellate court.Wyatt v. Henderson,31 Or. 48, 52, 48 P. 790;State ex rel. Moltzner v. Mott,163 Or. 631, 637, 97 P.2d 950.In Ross v. Robinson,169 Or. 293, 314, 124 P.2d 918, 128 P.2d 956, such objection was not raised until the case was argued upon rehearing before this court; nevertheless we considered it.

We are of the opinion that the complaint in this case failed to state facts sufficient to constitute a cause of action.The parol evidence rule and the statute of frauds render the contract as pleaded unenforcible. '* * * however morally deserving the plaintiffs may be, we cannot override the express mandate of the law in their interest and impose upon the defendant a liability which the legislative department of the...