Page v. Geiser Manufacturing Co.

Opinion of the court by Garber, J: In determining the motion for judgment on the pleadings plaintiff in error, in the absence of mistake, is bound by the admissions made in his original answer, which must be considered and treated as admitted facts in the case. “Where a party to an action makes solemn admission against his interests in a pleading, in the absence of mistakes on his part or on the part of his counsel who inserted them in such pleading, a court, in passing upon the sufficiency of a subsequent amended pleading, filed by him, should take such admission into consideration and treat them as admitted facts in the case.” The Lane Implement Co. v. L. R. Rowder and J. H. Manning, 11 Okla. 61. Section 829, art. 5. chap. 15, Wilson’s statutes provides: “A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise.” And sec. 781, Wilson’s Statutes, provides: “The execution of a contract, in writing1 whether the law requires it to be written or not supersedes all the oral nego *114 tiations or stipulations concerning its matter, wbicb precedes or accompanies tbe execution of the instrument.” The agreement alleged to have been made at the time the note was given whereby Johnson agreed to do Page’s threshing at the customary price, and that whatever his threshing bill amounted to, under those terms, would be the extent of his liability on the note, was not in writing; neither was it an executed oral agreement, and, therefore, could not be permitted to add to, subtract from, or vary the terms of the written contract expressed in the note, which was complete in itself and given for a sufficient consideration. 7 Cyc. 712 and authorities therein cited. The promise in the note to pay the amount therein stated was without condition or reservation, and absolute. The oral contract alleged to have been made at the time was not an executed oral agreement, but was contingent, and wholly dependent upon the occurrence of future events, which were not referred to in its conditions. It was, therefore, void and, under the statute, could not be set up to contradict or change the conditions of a written instrument. “An oral agreement which alters an agreement in writing is not valid or binding, unless such oral agreement is executed, and proof of its existence is not competent to vary the terms of a written instrument.” John Neverman, et al v. The Bank of Cass Co., 14 Okla. 417. In Thistler, et al. v. Mackey, et al., 65 Kans. 464, 70 Pac. 334; the court held: “An unbroken line of decisions of this court sustains the proposition that oral evidence of agreements made contemporaneously with the execution of promissory notes or other written obligations is iuadmissable to contradict, vary, or add to *115 the terms of the engagement.*** The express agreement to pay, contained in a promissory note of the usual form, such as the one in question in this case, constitutes such writing, a complete contract, importing on its face an absolute obligation, as to which a reservation of right not to pay is entirely contradictory, therefore oral evidence of a contemporaneous agreement to surrender the note without payment in rescission of the contract pursuant to which it was given is not admissible. Allen v. Furbush, 4 Gray 504; Banks v. Manning, 60 Kans. 729, 57 Pac. 949; Trice v. Yoeman, 60 Kans. 742, 57 Pac. 955; Walker v. Price, 62 Kans. 327, 62 Pac. 1001, 84 Am. St. Rep. 392; Ehrsam v. Brown, 64 Kans. 466, 67 Pac. 67.” In his original answer Page alleged that the machine company sold the machine to Johnson upon the express condition that he obtain individual notes, in advance, from the farmers residing in the vicinity for the amount of their threshing, and that their notes thus obtained, including the note sued upon in this action, were executed, and delivered with that understanding, and were assigned by Johnson to the machine company as a part of the purchase price; and that upon receipt of the notes, the machine company delivered the machine to Johnson. To the extent of his note Page thereby became a guarantor of the purchase price of the machine; and the new contract alleged to have been made with Johnson after the note had been assigned and the machine, delivered, whereby Page was compelled to pay for the labor performed and coal used in threshing his grain, in the absence of an allegation that the machine company was a party to the contract or a guarantor, would not render it liable for failure of performance by Johnson. *116 In the case of Terwilliger v. Richardson Machine Company, 83 Pac. 715, 15 Okla. 644, Gillette, J., speaking for the court says: “It is urged by the counsel for plaintiffs in error that the consideration for which the notes sued on having wholly failed, and the company having received the same with knowledge of what the consideration was, it was not an innocent purchaser for value, and was not therefore entitled to recover in this action. This contention can not be sustained. The note sued on was given by Terwilliger without condition expressed in the note. It was a plain note of hand for value received, due, September 1st, after its date, May 5th. The company demanded security for a time sale of certain threshing machinery sold to Pease the purchaser, and Pease gave the security demanded, which was in part the note in question. “Terwilliger executed it with full knowledge that it .was to be delivered to the company as collateral security for the sale of the machinery about to be made to Pease. To that extent Terwilliger was a party to and induced the sale. The company may have known what consideration was moving from Pease to Terwilliger, and that the note was only a promise for a promise. The company, however, was not a party to any agreement between Terwilliger and Pease, except to the extent that in consideration of the execution and delivery of Terwilliger’s note as collateral, the machinery would be sold to Pease. This consideration was fully carried out by the company, and when carried out, Mr. Terwilliger was thereafter liable upon his contract. The company not being actually, or impliedly, a guarantor that Pease would perform his verbal agreement with Terwilliger, it can not be held liable for his, Pease’s failure to perform such agreement. Under the agreed statement of facts in this case, Terwilliger was in effect the guarantor of Pease’s contract with the company to the extent of the note in question, in consideration of the sale of the machinery, and cannot *117 because of Pease’s default in his promise to him, withdraw from his liability as such guarantor.” All claim of liability on the part of the machine company having been abandoned by Page in his amended answer, the failure of consideration from Johnson, relied upon as a complete defense in this action, is not available in view of the admissions that the note sued upon was given by Page to Johnson for the express purpose of being used by him as a part of the purchase price of the machine, and which it is admitted was sold and delivered by the defendant in error according to the terms of the contract, long prior to Johnson’s alleged default to Page. The judgment of the district court will, therefore, be affirmed. All the Justices concurring.