Kinnear & Gager Manufacturing Co. v. Miner

Munson, J. The plaintiff sues to recover a sum claimed to be due on a signed proposal submitted by it to the defendant and accepted by him, the body of which is as follows: “We herein propose to furnish for your new building at Brattieboro all necessary outside pebble metal material in galvanized finish at the price of $3.25 per hundred sq. feet. The amount of material necessary to be about 7,000 sq. feet.” There was another contract between the parties, executed at the same time, wherein the plaintiff agreed to furnish and erect, for $1,232, a steel ceiling on certain interior surfaces of the same building. There was also a’ contract of prior date which evidenced an agreement of the plaintiff to cover other parts of the building with steel ceiling for $2,400. The defendant claimed that the outside material specified in the writing sued upon was to be furnished without charge in consideration of his entering into the second contract for inside covering, and that he signed the writing, on the representations of plaintiff’s agent, to enable the plaintiff to secure the outside material from a firm carrying that stock. The main •question in the ease arises upon the admission of evidence offered to establish this claim of the defendant, against the plaintiff’s ■objection that it was evidence varying the terms of a written ■contract. [326] The general rule governing this subject, and the necessity of adhering to it, are matters beyond controversy. There are also a number of secondary rules equally well established. But, with the law of the subject fully developed in a great body of adjudged cases, difficulty is often found in applying the rules. The subject has been quite fully treated in our own eases. The result of these cases is given in the Vermont Digest as follows: “A written contract having no latent ambiguity cannot be qualified, controlled, contradicted, enlarged or diminished, by any contemporaneous or antecedent parol understanding.” 1069, pi. 640. It is held further, in elucidation of the rule, that oral .testimony can no more be received to rebut or contradict the legal intendment of a written instrument than to contradict its express terms. Rich v. Elliot, 10 Vt. 211; Brown v. Hitchcock, 28 Vt. 452; Brandon Mfg. Co. v. Morse, 48 Vt. 322. The rule does not forbid evidence of extrinsic matters which tend to show that the writing was procured by fraud. Winn v. Chamberlin, 32 Vt. 318; Wilbur v. Prior, 67 Vt. 508. 32 Atl. 474. But a contemporaneous oral agreement that the use of the writing shall be confined to a specified purpose and not be enforced against the maker, cannot be shown. Gillett v. Ballou, 29 Vt. 296; Connor v. Carpenter, 28 Vt. 237. Evidence of an agreement concerning a branch of the transaction which is in' no way covered by the writing, and is not inconsistent with it, may be received, when it satisfactorily appears that the parties did not intend to reduce the whole transaction to writing. Winn v. Chamberlin, 32 Vt. 318; Labbee v. Johnson, 66 Vt. 234, 28 Atl. 986; Gilman Bros. v. Williams, 74 Vt. 327, 52 Atl. 428. A contract evidenced by several writings, although one is a receipt, cannot be varied or contradicted by parol in a point wherein the writings, taken together, are specific. Raymond v. Roberts, 2 Aik. 204, 16 Am. Dec. 698. Ordinarily the intent of the parties is to be determined from what appears in the writing. Pingry v. Watkins, 17 Vt. 379; Hakes v. Hotchkiss, 23 Vt. 231; Dixon v. Blondin, 58 Vt. 689, 5 Atl. 514. But when the intent of the parties upon the face of the instrument, is doubtful, or the language used will admit of more than one interpretation, the court will look at the situation and motives of the parties, the' subject-matter of the contract, and the object to be attained by it; and will receive parol evidence to this end. Lowry v. [327] Adams, 22 Vt. 160; Wing v. Cooper, 37 Vt. 169; Bacon v. Dodge, 62 Vt. 460, 20 Atl. 197. In Farnham v. Ingham, 5 Vt. 514, it was held by a divided court that a parol agreement, made at the time of executing a note, that the note might be paid in a manner different from that expressed in it, was admissible in evidence. This was overruled in terms in Isaacs v. Elkins, 11 Vt. 679, and the rule then asserted has since been applied in several cases. In Stewards of M. E. Church v. Town, 49 Vt. 29, the suit was on a building subscription, and the defendant claimed that it was agreed as a part of the contract of subscription that he should be employed in the construction and could pay his subscription in work. The court said that the written subscription showed on its face a single, entire and completed contract, and did not purport to be a part of a contract, another part of which had been purposely omitted from the writing, and that the application of the general rule to the case could not be made plainer by discussion. Reference should also be had to Blodgett v. Morrill, 20 Vt. 509; another suit on a subscription contract. Here the defendant offered to show that he was induced to sign the subscription solely by an assurance of the agent that “he wanted his signature to influence others to sign” and that “he should never be called upon to pay.” The court said that this was directly contradictory to the written stipulation, and could no more be received than could parol evidence of a promise not to collect a promissory note, or to accept payment in some different mode from that specified in the contract. There is nothing in the evidence in this case that affords any basis for a claim that the uniting was fraudulently procured, and no such claim is made. The position taken by the defendant is comprised in two distinct propositions. It is claimed that the outside material was “thrown in” by the plaintiff to secure the defendant’s, order for further inside work; so that the amount paid for the latter was the consideration for both. It is claimed that the writing in suit was signed by the defendant merely to enable the plaintiff to meet some trade requirement, the exact nature of which does not appear, — and was to be used for no other purpose. In passing upon the defendant’s claim, the writing in suit and the contemporaneous agreement for inside work are to be considered together. This contemporane [328] ous agreement contains a detailed, specification of the work tc be done, and the consideration is a fixed sum for the whole work, In the writing sued upon the material contracted for is to be furnished at a given price per hundred square feet. This is the same in legal effect as if it were provided in terms that the consideration was to be paid in money. There is nothing in these writings, viewed separately or together, that suggests the existence of a further stipulation which the parties did not intend to include in the writings. The matter of consideration is fully covered in each. The claimed parol understanding is not consistent with the writing in suit. It is so absolutely inconsistent ■with the writing that it abrogates the contract evidenced by it. There are several classes of cases from which this case is to be distinguished. Among these are cases where the writing was one of security, and was not intended to state the whole contract; eases where the possessor of a,n instrument which has been satisfied presents it as evidence of an existing obligation; cases where the writing was to take effect only when the promissee had secured another signer, or complied with some like condition; cases where the writing was hot to take effect unless the promissor failed to perform some alternative ■ undertaking. The writing in this casé took effect upon delivery, and the plaintiff has performed according to its terms. It was the only contract relating to the outside covering of the building, and if there had been a failure of performance on the part of the plaintiff, it would have been the defendant’s evidence of his right to recover damages. Judgment reversed and cause remanded.