Burns & Smith Lumber Co. v. Doyle

Tobbabee, J. The acceptance sued upon is in writing, and is an absolute and unqualified one, as distinguished from a conditional one. It is well settled that in an action at law such an acceptance cannot be cut down to a conditional one, even by the clearest proof of a contemporaneous oral agreement to that effect. Such an agreement, however conclusively proved, would not avail the defendant for such a purpose, and therefore all evidence of it is excluded. Osborne v. Taylor, 58 Conn. 439; Averill v. Sawyer, 62 id. 560; Caulfield v. Hermann, 64 id. 325; Hills v. Farmington, 70 id. 450, 453. But if the written acceptance was delivered to the plaintiff upon an oral condition assented to by the plaintiff, that it was not to become operative, or have any existence at all as an acceptance, until the cottage was completed and the money became due to Mills, that condition, if proved, would avail the defendant, and under proper pleadings evidence of such a conditional delivery would be admissible. McFarland v. Sikes, 54 Conn. 250; Trumbull v. O'Hara, 71 id. 172; Michels v. Olmstead, 157 U. S. 198; Bedell v. Wilder, 65 Vt. 406; Pym v. Campbell, 6 El. & Bl. 370 ; Pattle v. Hornibrook, L. R. (1897) 1 Ch. Div. 25. The general rule applied in the former class of cases is, that a prior or contemporaneous oral agreement intended to add to or cut down or vary a written agreement is without legal effect. It is founded on the principle that the writing expresses the final views of the parties to the exclusion of all extrinsic, prior or contemporaneous agreements or understandings. It is a salutary rule and should be strictly adhered to. The rule applied in the latter class of cases is, that you may show that a writing purporting to be a contract never came into existence as a contract, or has ceased to be a contract, and may show this, of course, by evidence outside of the writing. This latter rule is not an exception to the former nor an infringement of it. The practical distinction between the two rules was tersely stated by Eble, J., in Pym v. Campbell, supra, as follows: [746] “The distinction in point of law is that evidence to vary the terras of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible.” Where a defense of this kind is set up in a case in which the written contract has been actually delivered to the other party, as in this case, the proof of conditional delivery ought to be clear and strong. In such case possession of the contract by the other party is prima facie evidence of an unconditional delivery. McFarland v. Sikes, 54 Conn. 250, 251. In the court below the defendant claimed that the acceptance sued upon came within the latter class of cases, and he therefore claimed the right to show, not a conditional acceptance, but a conditional delivery of an acceptance; a delivery under the terms of which the writing signed by the defendant never became a contract at all. The defendant claimed the right to prove such a delivery under the pleadings. The plaintiff claimed that evidence of such a delivery was not admissible under the pleadings, and the court overruled tins claim, and against the plaintiff’s objection admitted the evidence; .and one of the questions upon this appeal is whether the court erred in so doing. Leaving out of view for the present the defense of .want of consideration, we think the answer sets up a conditional oral acceptance, and not a conditional delivery of an acceptance. It alleges, in effect, that the absolute written acceptance was made, but was made upon an oral condition that the. defendant should not be called upon to pay it, or be made liable upon it, except in a certain stated contingency. This is nothing more or less than an allegation of the existence of a contemporaneous oral agreement that the absolute, written acceptance should be treated as a conditional one. The defense in question contains no hint that the acceptance was delivered conditionally, within the meaning of the cases upon which the defendant relies. It is analogous to the defenses set up in Osborne v. Taylor, supra, and in Beard v. Boylan 59 Conn. 181, which were held to be demurrable, because [747] they each set np a contemporaneous oral agreement to affect a written contract. On the same ground we think the defense in question could not have stood the test of a demurrer. Under this defense, then, the defendant was not entitled to prove such a conditional delivery as he claimed, because that fact, if it existed, was not within the issue, and evidence of it should have been excluded. Furthermore, in this view of the matter, if the facts found are to be regarded as establishing a conditional delivery of the acceptance, the finding goes entirely outside of the issue, and such a finding furnishes no support for a judgment based upon facts so found. Atwood v. Welton, 57 Conn. 514; Ives v. Goshen, 63 id. 79. The plaintiff further claims that even if the facte found were provable under the pleadings, yet the finding does not show a conditional delivery of the acceptance, as distinguished from a conditional acceptance. ’ Upon this point the finding is not free from doubt, but we think the fair import of it is that the acceptance wras delivered upon a condition that it was not to take effect at all as an acceptance except upon a stated contingency. That was the ground upon which the judgment was based, and apparently the sole ground; and taldng the record„as a whole we think the finding is that the delivery was conditional. As there must be a new trial for the reasons already given, we deem it unnecessary to consider or decide the questions raised by the defense of virant of consideration for the acceptance. There is error and a new trial is granted. In this opinion the other judges concurred.