Mt. Vernon Stone Co. v. J.R. Sheely & Co.

Given, C. J. 2 I. Evidence offered by plaintiff tending to show the oral agreements alleged was admitted over defendants’ objections, and of this they complain. “The rule is elementary that, where a contract is reduced to writing, the writing affords the only evidence of the terms and conditions of the contract. All antecedent and contemporaneous verbal agreements are merged in the written contract. The law will not allow that an agreement in such case may rest partly in writing and partly in parol, so that it is equally inadmissible to add to, take from, or specifically change the terms of the written agreement by parol.” Kelly v. Railway Co., 93 Iowa, 445. In Murdy v. Skyles, 101 Iowa, 555, we said: “It is well settled that a contract may rest partly in writing and partly in parol, and that in such cases extrinsic evidence is admissible to establish that part which is not in writing.” We need not make further citations as to these familiar and well-established rules. Mr. Plattner, after denying the written contract, was permitted, over defendants’ objection, to testify that at the time of making his written contract, and in the same talk, in the presence of the defendant Mr. Sheely and of the engineer, George Wyn, the following oral contract was made: That defendants would furnish a derrick within 10 days, and a man with it, to receive and unload the stone as they cams to the bridge site, and that there Should be a ticket, the same as. a paymaster’s ticket, with [317] each stone or load of stone, showing the size of it, to be given -to the defendants. This, it will be observed, was not after, but “at the time of, the making of this written contract, and in the same talk;” and therefore it is insisted that it was in-' admissible, under the rule announced in Kelly v. Railway Co., supra. There may seem to be an inconsistency between this and the rule announced in Murdy v. Skyles, supra, but not so when the reason for and the scope of the rules are ■considered. All antecedent or contemporaneous verbal agreements as to matters embraced in the written agreement are merged therein, and the writing is conclusively presumed to express fully the agreement of the parties as to such matters; and, as to them, parol proofs that would vary, contradict, add to, take from, or specifically change the terms of the written agreement are inadmissible. It does not follow from this rule that the parties may not before or at or after the making of the. written agreement verbally agree as to matters not covered by the writing. In this writing the parties agreed as to about the number of yards of stone to be furnished; the use they were to be 'furnished for; that they were to be of such dimensions and quality as to fill the specifications, and to be satisfactory to the engineer; the time within which delivery was to be made; the price to be paid for stone cut and delivered on wagons at the bridge site; and the time of payments. As to these matters parol evidence is inadmissible, but not so as to verbal ■agreements not covered by the writing, and the question is in this, as in every case where both written and verbal agreements are relied upon, whether the alleged verbal agreements will vary, contradict, add to, take from, or change the written agreement. The verbal agreements alleged and permitted to be proven that the plaintiff was to measure the stone at the quarry, and give tickets showing the measurements to the teamsters for delivery to the defendants, and that any controversy as to quantity or quality was to be determined before the stone was used in the bridge, [318] and that defendants agreed to furnish a derrick fo-r unloading as early as November 5, 1897. The written contract is silent on these subjects, and there is no evidence of custom as to when or how stone are measured or unloaded, that became a part of the written contract. Plaintiff was to deliver “on wagons at bridge,” but the writing is silent as to-how the unloading was to be done or measurements made. We think the alleged verbal agreements do not tend to vary, change, or modify a single word of the written agreement,, and that they are not inconsistent therewith, and that, both may be enforced; and therefore there was no error in admitting evidence to- show the alleged verbal agreement. [318] II. Plaintiff claims, as an item of damage caused by the alleged delay in furnishing a derrick for unloading at' the bridge site, that the stone prepared for delivery could not be delivered at the bridge site, and in consequence thereof they were accumulated in the quarry so as to prevent work therein, and that, to be ready to deliver the stone as agreed, plaintiff had to keep its regular force on pay and unemployed until the derrick was- provided. The court admitted evidence in support of this claim, over the defendants’ objection, and, after stating the claim to the jury instructed as follows: “If you find, by a preponderance of the evidence, that part of the oral contract-was that defendant was to provide said derrick by the 5th day of November, and you further find that defendant did not provide said derrick until about the 29th day of November, and that thereby plaintiff was delayed in the work of getting out stone and delivering the same, to his damage, you will then find for plaintiff for such sum as damages on that account as the evidence shows plaintiff suffered-.” Appellants’ counsel say: “Our contention is that, the appellee should have complied with the contract on their part. They should, ten days after the execution, have begun the, delivery of stone on wagons at the bridge site. If J. P. Sheely & Co. had failed or refused to receive them, then the Mt. Vernon Stone Com [319] pany should have unloaded the stone themselves from the wagons, and the cost of unloading them would have constituted their measure of damage.” Appellee, in an amendment and denial of appellants’ abstract, says: “The appellee denies that the defendants excepted or objected to any of the instructions given to the jury at the time they were given or at any subsequent time.” Appellants have failed to file any denial of appellee’s amendment to abstract, or any transcript in support of their abstract, and therefore this denial must be taken as true; and it follows therefrom that we may not consider the objections now made to instructions. As the instructions, including the one quoted above, became the law of the case, there was no prejudicial error in admitting the evidence in support of the plaintiff’s claim as to the damages caused by delay in furnishing the derrick. III. Defendants insist that the verdict was the result of passion and prejudice, and that the jury must have ignored the testimony offered by them. We have examined the evidence in the light of defendant’s argument, and reach the conclusion that the complaint is not well founded. We will not discuss the evidence. It is sufficient to say that we think it supports the verdict. What we have said disposes of all questions properly before us for consideration, and leads to the conclusion that the judgment of the district court must be aeeirmed.