Tietjen v. Snead , 3 Ariz. 195 ( 1890 )

KIBBEY, J.

This was an action by appellee against appellant for damages for the breach of a contract for a lease of a store-room in Phoenix. Appellant demurred to the complaint, and the demurrer was overruled. Appellant pleaded the general denial, and specially that the written memorandum of the contract did not embody the whole agreement, but that a part of it rested in parol, and alleging breach by appellant. A demurrer to the special plea was sustained, and the ruling excepted to. There was a trial by the court. Finding and judgment for appellee. Motion for new trial by appellant overruled. The errors assigned are the sustaining of the demurrer to appellant’s special answer, and the admission and exclusion of certain evidence. The written memorandum, which is the foundation of appellee’s cause of action, is as follows: “Exhibit A. Phoenix, Arizona, Peb. 21, ’88. J. S. Snead hereby guaranty to furnish A. P. Tietjen with a lease for the whole store-room which stands upon the east part of lot eight (8), block twenty-one (21), in the city of Phoenix, Maricopa County, which said budding fronts to the north side of Washington Street in said city. The above lease to be at least for the term of one year, at one hundred and forty dollars ($140.00) per month rent. But this guaranty shall not hold good in ease the property is sold before that time. Lease to begin Oct. 1st, 1888. J. S. Snead, A. P. Tietjen.” Appellant alleges in his answer that, at the time he and appellee entered into that agreement, the appellee and another were partners; that the agreement was made with the understanding that appellee and his partner should occupy the room for a particular purpose) that such occupancy was one of the main and essential conditions of the lease guaranteed; that, long before the day fixed for the commencement of the proposed lease, appellee and his partner dissolved their partnership, and none of the members of the firm desired the room in question for the purpose contemplated; that, at the time appellee demanded the lease in pursuance of the agreement he did so for himself alone, and for another purpose; that appellant, up to the 1st of October, 1888, was ready and willing to comply with his agreement as herein set forth.

We think the agreement sued on was complete and entire within itself. It was definite as to the subject-matter, price, and term; and any prior or contemporaneous verbal agreement must be deemed to have been merged in the written memorandum, and that cannot be varied by proof of such verbal understanding. The demurrer was properly sustained. This answer is further objectionable because the terms of. the verbal part of the agreement are not alleged directly, but argumentatively and inferentially.

The statement of facts is not approved or signed by the judge of the district court. We cannot, therefore, consider it a part of the record. Rev. Stats. 1887, sec. 844; Wampler v. Walker, 28 Tex. 598; Witten v. Poindexter, 25 Tex. Supp. 378. The motion for a new trial is not, nor is the ruling thereon, embodied in a bill of exceptions, as required by section 842; and hence we cannot consider any error in the ruling upon the motion. Nor can we consider any error that might have been urged as a ground for a new trial below, unless it had been so urged. See Sutherland v. Putnam, ante, p. 182, 24 Pac. 320, (at this term). The bill of exceptions in the transcript does not contain enough of the evidence given at the trial to explain the objections and rulings complained of, and reference cannot be had to the statement of facts, for the reason above stated. The bill of exceptions contains none of the evidence. Secs. 824, 825.

In the bill of exceptions it is stated that at the trial the defendant “offered to introduce George F. Coats, Charles Goldman, E. Ganz, W. T. Smith, William Pimm, as witnesses for himself, to show that they knew the value of leaseholds, for the purpose of fixing the measure of damages, and showing the damages which defendant suffered by the breach of his agreement; that the court refused to allow them to testify, and refused the defendant the right to such evidence, to which defendant objected and excepted.” This statement is a little confusing. There is no issue in the case making evidence to show damages to the defendant pertinent. We suppose this a clerical error in the substitution of the word “defendant” for “plaintiff.” But the exception is not properly stated. It is not shown that the witnesses were competent, nor that any competent questions were propounded to them, or any of them. Then? exclusion may have been proper on that account; and, until the contrary is shown, we must presume in favor of the ruling of the court. And further, it is not shown what answer would have been made by the witnesses, and we cannot assume that they would or would not have been favorable to the appellant. If the answers would have been adverse to the appellant, he would not have been injured, and cannot complain, and, if the answers would have been favorable, the record should have shown the fact to have disclosed the error. The party alleging the error must establish it. McAuley v. Harris, 71 Tex. 631, 9 S. W. 679-683; Railroad Co. v. Johnson, (Tex.) 7 S. W. 378; Jacoby v. Brigman, (Tex.) 7. S. W. 367; Moss v. Cameron, 66 Tex. 412, 1 S. W. 177.

The hill of exceptions does not show that it has been submitted to the opposite party before it was signed and filed, as required by section 829. This should be shown. These rules of practice are intended for the protection of litigants, and are the result of many years’ efforts to devise means to that end.

It is a matter known to all the profession and to the courts that many cases have been affirmed which, had the entire proceedings, or that part of them pertinent to the question considered, been presented to the appellate court, would have been reversed. The burden of establishing error is upon the appellant, and every presumption must be indulged by this court in favor of the judgment of the lower court. Lockhart v. Keller, (Tex.) 9 S. W. 179, 181.

The judgment is affirmed.

Wright, C. J., and Sloan, J., concurring.