Milner v. Earl Fruit Co. of the Northwest

BUDGE, J. Respondent in this action seeks to recover from appellant $7,766.04, an alleged balance due for his 1919 crop of apples which he alleges were delivered to the appellant at his special instance and request between September 22, 1919, and November 3, 1919. Appellant in his answer denies specifically the allegations of respondent’s complaint and affirmatively alleges that o> or about May 24, 1919, it en *342 tered into a written consignment contract with respondent wherein it was mutually agreed that the entire apple crop of respondent for the year 1919, estimated at about 18,000 boxes, was to be delivered to appellant. The contract is set out in full and made a part of the answer and contains the usual and general provisions of a consignment contract, including the payment of commission, costs and expenses in connection with the loading, inspecting, shipping and transportation of the fruit to the place of sale or to the points designated by the appellant. It also provides that appellant shall make certain advances for the purchase of spray, box materials, nails, paper and expenses incident to the thinning of the orchard and also provides that appellant shall furnish, from time to time, accounts of all apples sold with debits and credits by reason of advancements, storage charges and othep matters not necessary to be mentioned. The cause was tried to the court and a jury. A verdict was rendered in favor of respondent for $7,766.04 and thereafter judgment was entered on said verdict. A motion for new trial was thereafter made and overruled. This appeal is from the judgment and from an order overruling the motion for a new trial. Appellant designates five specifications of error which may be discussed and disposed of under specification of error No. 4, which is that “the court erred in admitting certain testimony of the plaintiff, A. J. Milner, relating to negotiations, conversations and transactions prior to the entering into of the written contract.” If the action of the court in this regard was erroneous, its action was likewise erroneous in refusing to grant appellant’s motion for a nonsuit,- a directed verdict and in denying appellant’s motion for a new trial. The evidence objected to related to conversations and negotiations that took place between respondent, Lester Campbell and F. V. Martin, the two latter being agents of appellant, prior to entering into the written contract set out in appellant’s answer. It might be here observed that one 'James Swan, who testified that he was present and heard the conversations and negotiations had between the above- *343 named parties, was permitted to testify to the substance of the conversations and negotiations alleged to have been carried on. We shall consider only such of the testimony given by the respondent as is necessary to dispose of the question raised by the fourth assignment of error. Respondent testified that Martin and Campbell came to his place on the 19th or 20th of May, 1919, at which time he had a conversation with them, as representatives of the appellant, touching the matter of the consignment to that company of his apple crop for that year. He testified that he said to them that he did not care to ship any of his crop on consignment; that he intended to sell his crop f. o. b. cars at Buhl; that finally Mr. Martin made him a proposition that appellant would make him a price for the apples at picking time, f. o. b. cars at Buhl; and that he would have the privilege of rejecting or accepting the price made by him at that time. He further testified that Mr. Martin said that in making that price or offer they would take ten cents a box from their price and he would then have the absolute price that he would get for his apples, f. o. b cars at Buhl, with the privilege of either accepting or rejecting the price offered at picking time. At this point in the testimony appellant’s counsel asked to be permitted to interrogate the witness and with the consent of the court, asked the following question: “Q. Bid you have a written contract with the Earl Fruit Company? A. There was one entered into.” Counsel for appellant then interposed the following objection: “We object to any testimony which would attempt to vary the terms of the written contract by parol; and we object to it further upon the ground that it is not the best evidence. ’ ’ Whereupon the court made the following ruling: “Court: If this preceded the contract and afterward was embodied in the contract, the objection is well taken.” Counsel for respondent then inquired of the witness whether there was a written contract and the witness stated that “there was one entered into following our conversation,” meaning the conversation heretofore stated. *344 The witness was then- asked to explain the circumstances under which the contract was entered into and in the course of his explanation stated that: “after we had come to an agreement, it was left with Mr. Campbell to draw up the contract according to our agreement and I was to sign the contract after Mr. Campbell drew it up according to our agreement, but when he delivered that contract to me it was in the evening just about dark and I was unable to read the contract over, and after we had talked the matter over and Mr. Campbell assured me that he had drawn the contract in accordance with our agreement, and after that I says I will sign this contract for you and you can take it back, and I says if the contract is according to our agreement it will stand, and if it is not I will let you know, and I will be over and see you.” I The witness was then permitted to testify that the contract delivered and signed by him was not in accordance with the understanding previously had; that he afterward went to Twin Falls and told Mr. Campbell that the contract was not prepared in accordance with the agreement theretofore reached. At the conclusion of the witness’ testimony counsel for appellant objected to any testimony as to what the contract contained, or as to* the circumstances or conversations leading up to the contract, for the reason that the contract itself was the best evidence of what 'it contained and of what the agreement was. The court, in making its ruling, used the following language: “No, I think that is true. A written contract which would be produced would be the best evidence as to what the agreement was, and it would not be changed or modified by anything of that kind.” Whereupon counsel for respondent made the following statement: “It is the theory of the plaintiff here that the written contract is not in force or operative; that it was signed by the plaintiff upon misrepresentation amounting practically to a fraud perpetrated upon the plaintiff, as the defendant company through its representatives, Mr. 'Campbell and Mr, *345 Martin assured this plaintiff that the contract did in fact contain certain terms that it did not as a matter of fact contain, and it was mutually agreed at the time of the signing of the contract that if it did not contain the particular matters and things theretofore agreed upon, that it would be of no force nor effect, no binding force upon the plaintiff.” From what has been recited and as further disclosed by the record, the court ultimately permitted the witness to testify to all of the conversations and negotiations had prior to and contemporaneously with the execution of the contract. It is insisted by appellant that the admission of this testimony constituted reversible error. It will be observed from a reading of the complaint that neither fraud, misrepresentation nor coercion are alleged. While respondent urges fraud and misrepresentation to avoid the contract he failed to plead it, and this evidence was therefore not admissible. (Moser v. Pugh-Jenkins Furniture Co., 31 Ida. 438, 173 Pac. 639, and cases therein cited; Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601; San Diego County v. Utt, 173 Cal. 554, 160 Pac. 657; Interior Warehouse Co. v. Dunn, 80 Or. 528, 157 Pac. 806; Benson v. Johnson, 85 Or. 677, 165 Pac. 1001; Harding v. Robinson, 175 Cal. 651, 166 Pac. 808.) This evidence varied, altered and contradicted the terms of the written contract conceded by both parties to have been signed and delivered. The contract pleaded in the answer is a contract of consignment. The testimony offered by the witness, as well as the allegations of the complaint, tended to establish a contract of sale. If respondent is allowed to introduce proof under his pleadings, he recovers upon an entirely different contract than the one signed and entered into by the parties. The fact that the contract was signed and delivered at about dark, coupled with the further fact, if it be true, that respondent did not read or understand the written contract, is not sufficient to set it aside and constituted nothing more than gross negligence upon the part of appellant in failing to read the contract or have the same *346 read to him, or to otherwise inform himseif as to the nature, terms and conditions thereof. (Constantine v. McDonald, 25 Ida. 342, 137 Pac. 531; Price v. Shay, 110 Kan. 351, 203 Pac. 1105; 6 R. C. L., p. 624, sec. 43; 13 C. J., p. 370, sec. 249.) The general rule of law that parol evidence cannot be admitted to alter, contradict, vary, add to or detract from the terms of a written instrument or contract has so frequently been laid down in text-books, encyclopedias and decided eases that no useful purpose would be served by incorporating at length the discussions contained therein. The most usual language used in respect to the parol evidence rule will be found in 22 C. J., pp. 1099-1104, sec. 1459, which is: “ .... in the absence of fraud or mistake, parol or extrinsic evidence is not admissible to vary, add to, modify, or contradict the terms or provisions of the written instrument 'by showing the intentions of the parties or their real agreement with reference to the subject matter to have been different from what is expressed in the writing; for where the parties have deliberately put their engagements into writing-in such terms as import a legal obligation, without any uncertainty as to the object or extent of their engagement, all previous negotiations and agreements with reference to- the subject matter are presumed to have been merged in the written contract, and the whole engagement of the parties and the extent of their undertaking is presumed to have been reduced to writing. The rule, however, goes even further than this, and it has been established that where the instrument is free from ambiguity, and is in itself susceptible of a clear and sensible construction, parol or extrinsic evidence is not admissible even to explain its meaning or determine the construction of the writing.” (See, also, Butterick Pub. Co. v. Fisher, 203 Mass. 122, 133 Am. St. 283, 89 N. E. 189. Also 10 R. C. L. 1016-1018, see. 208: “The execution of a contract in writing is deemed to supersede all the oral negotiations or stipulations concerning its terms and subject matter which preceded or accompanied *347 the execution of the instrument, in the absence of accident, fraud, or mistake of fact; and any representation made prior to or contemporaneous with the execution of the written contract is held to be inadmissible to contradict, change or add to the terms -plainly incorporated into and made a part of the written contract.....Although oral evidence may be (erroneously) admitted without objection it should not be permitted to work an alteration of a written contract between the parties.” This court, in the recent case of Gardiner v. Gardiner, 36 Ida. 664, 670, 214 Pac. 219, stated the rule as follows: “The general rule is well established that, when a contract is reduced to writing, it constitutes the final agreement of the parties as to its subject matter, and prior or contemporaneous oral agreements or statements varying or adding to its terms are not admissible.” (See, also, to the same effect, Jacobs v. Shenon, 3 Ida. 274, 29 Pac. 44; Stein v. Fogarty, 4 Ida. 702, 43 Pac. 681; First National Bank v. Bews, 5 Ida. 678, 51 Pac. 777; Tyson v. Neill, 8 Ida. 603, 70 Pac. 790; Newmyer v. Roush, 21 Ida. 106, 123, Ann. Cas. 1913D, 433, 120 Pac. 464; Payette Nat. Bank v. Ingard, 34 Ida. 295, 200 Pac. 344; Beebe v. Pioneer Bank & Trust Co., 34 Ida. 385, 201 Pac. 717; Hurt v. Monumental Mercury Min. Co., 35 Ida. 295, 206 Pac. 184.) The contract of consignment was admitted by the respondent to be the contract entered into and upon a number of instances he testified that he considered the entire contract as binding upon him and upon appellant with the exception of the consignment features and that he availed himself of all of the provisions of the contract, namely, the acceptance of the money, materials, that portion of the contract which provided for commission, cost of warehouse, inspection and all other charges but insisted upon his right, by parol evidence of conversations and negotiations had prior to and contemporaneously with the execution of the contract, to eliminate therefrom the consignment features and insert in lieu thereof a contract of sale. The contract is unambiguous and free from all uncertainties, and, as admitted by respond *348 ent, expressed the final conclusions of the parties, except in the one particular above stated. Under the circumstances we have reached the conclusion that the court committed reversible error, particularly in view of the state of the pleadings, in permitting the witness to testify to any matters, conversations or negotiations alleged to have taken place prior to or contemporaneously with the execution of the contract. We are also of the opinion that there is no merit in the theory advanced by the respondent that when, as testified to by him, he went to Twin Falls and stated to the agent of appellant that the contract did not contain the agreement entered into in the orchard, and thereupon the agent of appellant stated in substance that irrespective of the written contract they would carry out the agreement entered into' in the orchard, this warranted the admission of the respondent’s testimony. Upon no theory could this testimony be admitted in the absence of proper allegations of the nature and character of the contract and the particulars wherein the same had been subsequently modified by the parol agreement. Where a modification of a contract is relied upon for a recovery, such modification must be pleaded. (13 C. J., sec. 835, p. 721; Pioneer Savings & Loan Co. v. Kasper, 7 Kan. App. 813, 52 Pac. 623; Williams v. Mt. Hood Ry. & Power Co., 57 Or. 251, Ann. Cas. 1913A, 177, 110 Pac. 490, 111 Pac. 17; Ross-Saskatoon Lumber Co. v. Turner, Dennis & Lowry L. Co. (Mo. App.), 253 S. W. 119; Mt. Vernon Car Mfg, Co. v. Hirsch Rolling Mill Co., 285 Mo. 669, 227 S. W. 67; Koons v. St. Louis Car Co., 203 Mo. 227, 101 S. W. 49; George Gifford Co. v. Willman, 187 Mo. App. 29, 173 S. W. 53; Ostrander v. Messmer (Mo. App.), 223 S. W. 438.) Counsel for respondent urges for the first time in this court that this testimony was admissible for the purpose of showing a subsequent parol modification of the original contract, in the absence of an allegation in his complaint that there was such a modification by subsequent parol agreement. In the trial court the cause was tried upon the theory that the written contract of consignment was a nullity and of no *349 force or effect. In this court it is insisted that the consignment contract was modified by subsequent parol agreement. These two theories are inconsistent and untenable. "We believe the rule to be that parties will be held to the theory upon which their cause was tried in the lower court and a different and inconsistent theory cannot be advanced for the first time upon appeal. (3 C. J. 718, sec. 618; Miller v. Sheane, 120 Wash. 227, 206 Pac. 913; Schneider v. Henley, 61 Cal. App. 758, 215 Pac. 1036; Forsland v. Forsland, 46 Cal. App. 405, 189 Pac. 327; Blanc v. Connor, 167 Cal. 716, 141 Pac. 217.) In view of the conclusion reached we do not deem it necessary to consider and dispose of the other errors assigned. The judgment must be reversed and it is so ordered. Costs are awarded to appellant. McCarthy, C. J., and William A. Lee, J., concur.