Golden v. Meier

The following opinion was filed April 17, 1906: Keewdst, J. The only question necessary to consider on this appeal is whether evidence was properly admitted to show that it was agreed at the time respondents, or some of them, affixed their signatures to the written agreement that it should not become binding or effective for any purpose until the appellants had obtained from the signers of such agreement a pledge in writing to furnish for the use of the creamery men17 tionecl in the agreement, when erected, the milk from 250 to 350 cows. It is claimed on the part of the appellants that the evidence offered that the agreement signed was not to go into effect until such pledge was obtained was not admissible since the contract in question is complete and contained the provision “that the parties of the first part shall consist of not less than thirty-three members, whose names shall be subscribed hereto, before this agreement shall become operative and take effect upon either party.” It is contended that the provision in the written agreement to the effect that it shall not be valid until signed by thirty-three members precludes testimony of any condition precedent to the taking effect of the agreement. Counsel relies wholly upon United E. & C. Co. v. Broadnax, 136 Fed. 351, which case he says is the only one he has been able to find passing upon the exact question here. It is true the Broadnax Case appears to support the contention of appellants to the effect that, where the written instrument enumerates conditions precedent to its validity, it. will be presumed that the written enumerations are exhaustive and that parol evidence to add to them should be excluded. This case, however, appears to be out of harmony with the-case of Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174. Counsel for appellants attempts to distinguish Ware v. Allen from the Broadnax Case. In Ware v. Allen the agreement provided in terms that it should be void if the promisor should', be defeated in a certain suit, but in other respects was a valid, binding obligation. Yet it was held that evidence was admissible to show that before the paper was signed it was understood that the agreement was to be of no effect unless, upon consultation with certain parties, the promisor was assured, that certain proceedings involved in the transaction were lawful. So it will be seen that this case on principle is in substantial conflict with the Broadnax Case and holds that, notwithstanding there were conditions in the contract to the effect [18] that it should he valid only upon certain contingencies, still other conditions precedent to its validity might be shown. At page 595 of 128 U. S. (9 Sup. Ct. 176) the court said: “We are of opinion that this evidence shows that the contract upon which this suit is brought never went into effect; that the condition upon which it was to become operative never occurred, and that it is not a question of contradicting or varying a written instrument by parol testimony, but that it is one of that class of cases, well recognized in the law, by which an instrument, whether delivered to a third person as an escrow or to the obligee in it, is made to depend, as to its going into operation, upon events to occur or be ascertained thereafter.” But it is not necessary to consider here the admissibility of evidence to prove a condition precedent wholly repugnant'to the expressed terms of the agreement in question, since the evidence offered is not in conflict with such agreement, but is independent of or collateral to it. If the condition precedent be performed according to the terms of the condition sought to be proved by parol, the writing will have full force and effect according to its terms. If the condition precedent be not performed, then the contract will never have vitality or become a binding agreement. If the pledge in writing be furnished by the plaintiffs, then the agreement in writing, according to its expressed terms, when signed by the thirty-three members, will have full force and effect. The question in this class of cases is not, however, whether the condition sought to be proved is in conflict with or varies the writing, but whether the written paper purporting to be a contract shall ever take effect as such. Proof of the nonperformance of the condition precedent has the effect of establishing the fact that the writing purporting to be a contract never in fact took effect as such. It is well settled both in England and this country that parol evidence is admissible to show that a written contract not under seal, although manually delivered, was not to become a binding or valid contract until the [19] performance of some condition precedent. The purpose of such evidence is to show that the written instrument was not, except in the contingency named, to become a contract, and that the contingency never happened; and it therefore does not contradict the writing. Nutting v. Minn. F. Ins. Co. 98 Wis. 26, 13 N. W. 432; State ex rel. Jones v. Chamber of Commerce, 121 Wis. 110, 98 N. W. 930; Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174; Thorne v. Ætna Ins. Co. 102 Wis. 593, 78 N. W. 920; Skaaraas v. Finnegan, 31 Minn. 48, 16 N. W. 456; Blewitt v. Boorum, 142 N. Y. 357, 37 N. E. 119; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816; Wilson v. Powers, 131 Mass. 539; McFarland v. Sikes, 54 Conn. 250, 7 Atl. 408; Benton v. Martin, 52 N. Y. 570; Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127; Hartford F. Ins. Co. v. Wilson, 187 U. S. 467, 23 Sup. Ct. 189; 2 Jones, Ev. § 478; 2 Taylor, Ev. (8th ed.) § 1135; Pym v. Campbell, 6 El. & Bl. 370. It seems to be firmly established by the foregoing cases and many others which might be cited that “the manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. This is not to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced.” Wilson v. Powers, 131 Mass. 539, 540. We think this well-settled doctrine rules the case at bar. Counsel for appellant refers to the language of this court in Thorne v. Ætna Ins. Co., supra, to the effect that this rule approaches closely to an infringement upon the principle that a written contract cannot be varied or contradicted by parol, and, therefore, such defense is subject to suspicion. But, conceding that the rule should be cautiously applied and the facts clearly proved, the case at bar is strictly within the rule. The written pledge amounting to a condition precedent to the validity of the contract was fully proved and found by the jury. The pledge was presented and signed by several at the [20] time tlie' agreement in question was being signed. Bnt the plaintiffs failed to secure a pledge in writing for the product of the number of cows agreed to be furnished, and hence failed to show a performance of the condition precedent necessary to give validity to the contract. It follows that the evidence offered to prove the condition precedent to the validity of the contract was properly admitted, and that the judgment, therefore, must be affirmed. By the Court. — Judgment affirmed. Oassoday, C. J., took no part. A motion for a rehearing was denied June 21, 1906.