Riemer v. Rice

WiNslow, J. The controlling question presented by the record is as to the admissibility of the evidence tending to show an oral contract of agency between the parties, by which the plaintiff undertook to find a purchaser for the defendant’s farm upon commission. The defendant objected to all of this evidence on the ground that it tended to vary and contradict the written option contract afterwards made between, the parties. If the evidence was admissible, the verdict and judgment must stand, because there was sufficient evidence to support it, but, if not admissible, then the verdict has nothing upon which to rest. The principle that oral evidence cannot be received to vary, alter, or contradict the terms of a written contract is so elementary and well settled that it scarcely requires statement. It is a salutary rule, and one that has, we believe, been consistently adhered to by this court. But the rule itself suggests its limitations. It is the evidence which tends to establish an inconsistent obligation from that which is expressed in the writing which is rejected. Where, therefore, it is shown that there was an original verbal contract, and a part of it only has been reduced to writing, the rule does not apply as to the part not reduced to writing. 1 Greenl. Ev. (15th ed.), § 284a, and note; Graffam v. Pierce, [20] 143 Mass. 386. So, if the oral and written contracts are distinct and separate undertakings, though perhaps relating to the same property, the fact that one is in writing does not prevent the proof of the other by parol, if it be not inconsistent with the writing. Snow v. Alley, 151 Mass. 15; Hahn v. Doolittle, 18 Wis. 196; Collette v. Weed, 68 Wis. 428; 17 Am. & Eng. Ency. of Law, 443, note 5. These rules are also supported by English decisions. Harris v. Rickett, 4 Hurl. & N. 1; Lindley v. Lacey, 112 Eng. C. L. 578. 1 Now, in the case before us, the evidence of the plaintiff •tended strongly to show that there was a'valid oral contract between the parties, by which the plaintiff was to undertake to find a purchaser for defendant’s farm, and was to. receive, as commission for his services, all that was realized on the sale exceeding $35,000; that the price for which it was to be offered to purchasers was to be $40,000; and that, to enable plaintiff to better handle the transaction and show to the world that he was authorized to make the sale, the option contract was executed and delivered to plaintiff. The two contracts may exist together, and are not necessarily inconsistent. A principal may lawfully give his agent an option to himself to purchase property in the agent’s hands for sale, and we see no reason why such an option should supersede a valid agreement of agency for sale to others upon commission. It was said in Russell v. Andrae, 79 Wis. 108, that “ agents are frequently invested by their principals with the title to property, for convenience in making sales thereof, and we are aware of no rule of law which excludes parol testimony to show the purpose of the transaction when proof of it becomes necessary.” To the same effect are Huckabee v. Shepherd, 75 Ala. 342; Clever v. Kirkman, 33 Law T. (N. S.), 672; Rogers v. Hadley, 2 Hurl. & C. 227. If, therefore, we regard the written option as a valid contract which authorized the agent to himself become [21] the purchaser, it is a separate collateral contract which may consistently exist at the same time as the oral contract for sale of the property to others on commission, and hence does not supersede or vacate it. If, on the other hand, we regard the option as a mere writing, not intended by the parties to become a contract, but simply to be used by the agent as proof of his authority to make sale to others, the real character of the transaction may be shown. In either case the parol evidence which was received was admissible. The charge of the court was not excepted to and is not preserved in the bill of exceptions; hence it must be conclusively presumed that the law was correctly stated to the jury. The evidence clearly showed, without contradiction,, that plaintiff, after great exertion, procured the organization of a corporation which was ready and willing, and offered, to purchase the property for $40,000. Plaintiff therefore performed the entire parol contract, and was entitled to his commissions. When the defendant refused to deed the land to the corporation, the plaintiff was forced, in order to keep his engagements with the purchasing corporation, to fall back on his option and take title himself, and thus make himself the channel through which the titlo passed to the corporation. There is nothing in these facts which prevents the plaintiff from recovering his commissions, to which he had become fully entitled when he produced a bona fide purchaser. The defense in this case-certainly comes with very ill grace. The defendant admits that he only asked $35,000 for the land. By plaintiff’s-successful exertions he has received $40,000, and proposes to retain the entire sum and let the plaintiff go unpaid» Both upon the law and the facts we think the verdict was right. By the Qov/rt.— Judgment affirmed.