Wemple v. Knopf

• Decision Date: 01 January 1870
• Parties: GEORGE W. WEMPLE v. ADAM KNOPF, JR.
• Court: Minnesota Supreme Court

15 Minn. 355

GEORGE W. WEMPLE

v. ADAM KNOPF, JR.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Rice county.

Perkins & Mott, for appellant.

Gordon E. Cole, for respondent.

BERRY, J.

This is an action in the nature of assumpsit for goods sold and delivered. To make out his case, plaintiff introduced in evidence a document of which the following is a copy, viz.:

"Mr. O. F. Brand, of the Northwestern Faribault Nursery:

"Please send me the following bill of nursery stock, to be delivered at Faribault, Rice county, Minn., during the months of October and November next. I agree to pay cash for all stock delivered at the price below mentioned, and should I fail to pay for the same when delivered, interest shall accrue thereon from the date of delivery until fully paid, at the rate of 12 per cent. [Here follows a schedule of the stock referred to in the order, and the prices, amounting to $68.]

                          [Signed]         "ADAM KNOPF, JR
                                               "Wheeling, Rice Co., Minn
                        "G. W. WEMPLE, Agent
                "June 3, 1869."
                

It appears that the plaintiff was Brand's agent at the date of the order, and that he took the order as such agent; that as Brand's agent he solicited defendant to buy the trees; that the stock mentioned in the order was delivered at Faribault, in October, 1869; that the defendant was duly notified of the delivery; that payment of the price was demanded of the defendant after the delivery, and refused; that, prior to the commencement of this action, Brand's claim had been duly assigned to the plaintiff, and that there had been no acceptance of any of the stock by the defendant.

Upon this showing the plaintiff rested, and the defendant moved to dismiss the action, "on the ground that the said sale of stock was void by the statute of frauds." The motion was properly denied. There was an agreement signed by the party sought to be charged therewith in this action. As we have already held in Morin v. Martz, 13 Minn. 191, (Gil. 180,) this satisfies the statute. See, also, Chit. Cont. 404-5.

The order in this case is not a mere offer, as in Lanz v. McLaughlin, 14 Minn. 75, (Gil. 55,) but it contains a positive and express agreement to pay a named sum for the goods ordered.

The motion to dismiss having been denied, "the defendant offered to prove that, at the time the said order was made — as an inducement to the defendant to give it — the said Wemple agreed with the defendant that the latter might revoke the order during the summer of said year, and not take the trees, if he so desired;" and also, "that during the said summer he did countermand the said order." Both offers were rightly rejected by the court. If the testimony offered had been received, it could only have been for the purpose of showing that the absolute engagement which the defendant had entered into by the terms of the order was not absolute, but conditional. This would be neither more nor less than a violation of the well-settled rule that "parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument." 1 Greenl. Ev. § 275. It would be to permit the defendant to show that the agreement evidenced by the order was not the agreement of the parties, but that something entirely inconsistent with it was the agreement of the parties. We have examined Clarke v. Tappin, 32 Conn. 56, cited by defendant's counsel, and are unable to see how the doctrines there laid down can take the case at bar out of the general rule...