Wemple v. Knope

Berry, J. By the Court. This is an action in the nature of assumpsit for goods sold and delivered. To make out his case plaintiff introduced in evidence a document of which the following is a copy, viz: “Mr. O. P. Brand, of the Northwestern Paribault Nursery: Please send me the following bill of nursery stock, to be delivered at Paribault, Bice county, Minn., during the months of October and November next. I agree to pay cash for all stock delivered at the price below mentioned, and should I fail to pay for the same when delivered interest shall accrue thereon from the date of delivery until fully paid, at the rate of twelve per cent. (Here follows a schedule of the stock referred to in the order, and the prices amounting to $68.00.) Signed, ADAM KNOPP, Jr. Wheeling, Bice Co., Minn. G. W. Wekple, Agent. June 3d, 1869. ” It appears that the plaintiff was Brand’s agent at the date of the order, and that he took the order as such agent; that as Brand’s agent he solicited defendant to buy the trees; that the stock mentioned in the order was delivered at Paribault, in October, 1869 ; that the defendant was duly notified of the delivery; that payment of the price was demanded of the defendant after the delivery and refused ; that prior to the commencement of this action, Brand’s [444] claim liad been duly assigned to the plaintiff, and that there had been no acceptance of any of the stock by the defendant. Upon this showing the plaintiff rested, and the defendant moved to dismiss the action, “ on the ground that the said sale of stock was void by the Statute of Frauds. ” The motion was properly denied. There was an agreement signed by the party sought to be charged therewith in this action. As we have already held in Morin vs. Martz, 13 Minn., 191, this satisfies tlie statute. See also Chitty on Contracts, 404-5. The order in this case is not a mere offer, as in Lanz vs. McLaughlin, 14 Minn. 75, but it contains a positive and express agreement to pay a named sum for the goods ordered. The motion to dismiss having been denied, “ the defendant offered to prove that, at the time the said order was made— as an inducement to the defendant to give it — the said Wemple agreed with the defendant that the latter might revoke the order during the summer of said year, and not take the trees, if he so desired;” and also “ that during the said summer he did countermand the said order.” ■ Both offers were rightly rejected by the court. If the testimony offered had been received, it could only have been for the purpose of showing that the absolute engagement which the defendant had entered into by the terms of the order, was not absolute, but conditional. This would be neither more nor less than a violation of the well settled rule that “ parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” 1 Gr. Ev. § 275. It would be to permit the defendant to show that the agreement evidenced by the order was not the agreement of the parties, but that something entirely inconsistent [445] with it was the agreement of the parties. We have examined Clark vs. Tappan, 32 Conn. 56, cited by defendant’s counsel, and are unable to see how the doctrines there laid down can take the case at bar out of the general rule above referred to. That was a case in which the defendant, being a member of a partnership, was released from all liability as a member of such partnership, in consideration of his individual promise to pay the amount of such liability. In an action brought upon the individual promise, oral evidence of such promise was received, and it was held that the release could not be introduced in evidence as a defense. The oral evidence was received upon the ground that' the release was no't, and did not purport to be the agreement between the parties. It was simply an act done by one party in performance of an agreement anterior to it; and.the release was very properly excluded, because it was a release of the defendant’s liability as a member of the partnership, while the promise set up was one by which the defendant charged himself, not as a partner, but as an individual. Oral evidence of the prornise did not, then, tend to vary or conti’adict the terms of the release, and as the release did not pui’port to discharge or extinguish any individual liability, it furnished no defence to the action. The case cited, then, is hardly an authority lor the defendant’s claim, that he should have been permitted to show, 'by parol evidence, that the written order which purported to be the agreement of the parties in the case, was not such an agreement. It is argued by defendant that the testimony offered should have been received, because this was a case in which a part only of an entire verbal contract was reduced to writing. An exception. to the general rule, on this ground, has been very generally allowed in particular cases. But as remax’ked by Judge Redfield, in Gr. Ev., 12 Ed., § 284, a., this 2 is a [446] qualification of the general rule which * * *• it will be always difficult to apply in practice, without materially trenching upon the integrity of the rule itself.” We find no case going so far as the court below was asked to go in this instance. The English cases of Pynn vs. Campbell, 6 Ell. and Bl., 370 and Wallis vs. Littell, 11 C. B. (N. S.,) 370, hold that parol evidence showing that the commencement of the obligation evidenced by the writing was suspended, may be received, upon the principle upon which it may be shown that a deed was never delivered, or is an escrow, that is to say, upon the ground that there never was an agreement. The same cases, however, expressly distinguish the admission of oral testimony for the purpose of showing a suspension of the obligation of the agreement, from its admission for the purpose of showing a defeasance of the obligation of the agreement. The idea of admitting it for the latter purpose is repudiated; and yet this is the very purpose for which it must be admitted in the case at bar, if at all. So far as the point under consideration is concerned, it is not claimed that the written agreement in this case was not made by the parties, nor that its obligation did not commence immediately; but that by a prior or contemporaneous verbal agreement it was subject to be defeated by subsequent action upon the part of the defendant. Judgment affirmed.