Wilford v. Bliss , 174 Ill. App. 28 ( 1912 )

Mr. Presiding Justice Duncan

delivered the opinion of the court.

Upon the question of whether or not appellee made the oral promise in question before the signing of the contract of release by appellant, only two witnesses testified, appellant and his lawyer, Mr. Weaver. Appellant’s testimony upon that point is as follows:

“Mr. Bliss said to have the attorney draw up what you want. My attorney started to draw up this agreement (the release), and my recollection is that before we got through drawing this agreement, he stopped and stated to Mr. Bliss, ‘Now you must remember that if you don’t guarantee to build this road in this time limit (two years) that this bond will be valueless to Wilford, will be of no value. You ought to give him a guaranty that you will build this road in the time limit in order to make this bond available, worth something.’ Well, then Bliss jumped up and he run. Well, after Mr. Weaver made this remark to him, Col. Bliss says, ‘Why haven’t you all got no—I won’t do that, because if I do I will be held up all along the line, people that have got rights of ways and separate locations and terminals and things will make me pay double or treble, will hold me up.’ That is the language he used, ‘and hence I won’t do it,’ he says, ‘but haven’t you fellows got any confidence in me?’ He says, ‘Wilford, you have been trying to drive a hard bargain with me all right,’ he says, ‘haven’t you any respect for my honor?’ I says, ‘Colonel, if you will tell me that you will handle that road in the time limit, I have got nothing to say. I don’t care what you do. ’ Well, Mr. Weaver finished up the articles and I signed it right there. * * * In reply to my statement that if he would give his word that he would construct that road in the time limited, I would sign anything he wanted, Bliss stated, ‘have your attorney draw up the transfer.’ ”

Mr. Weaver’s testimony on that matter is as follows :

“I fully pointed out, as I thought my duty was, to Major Wilford, his situation, and Major Wilford then said, ‘Yes, I ought to have some assurance that there ad will be built,’ and Col. Bliss said, ‘Haven’t I shown my faith in this matter by putting my money in,’ and he said, ‘If I sign a written contract of such a character as that and the people know it, why anything I want I would be held up about it.’ * * * The matter was discussed then along that line for some little while and finally Major Wilford said, as I recall now, ‘that is all right, Colonel Bliss, if you will tell me you will build that road I will sign that paper,’ and I either had it completed or in a minute, and he (Wilford) signed it, and I turned the contract over to Major Bliss, and I presume the Weaverville bond was returned to Mr. Wilford, although I have no recollection about that, and we went out.”

The foregoing evidence is not sufficient proof that Mr. Bliss made- the alleged parole agreement. On the contrary it amounts to positive evidence that he refused to make such agreement. His plain declaration, in substance, was that he would not agree to build the road and that the building of it must be left merely to his honor without any agreement, oral or written, that he would build it. This is the strongest construction that can be made of the language used by Mr. Bliss, and it falls far short of proving the agreement alleged.

We are also of the opinion that appellee’s objection to this evidence, that it was inadmissible under the rule that parole evidence is not admissible to vary or enlarge the terms of an unambiguous written contract, should be sustained. It is a well established rule that, in the absence of fraud or mistake, proof of antecedent or contemporaneous verbal agreements between contracting parties cannot be received to alter or control their unambiguous written agreement. Jackowski v. Illinois Steel Co., 103 Wis. 448; Schneider v. Sulzer, 212 Ill. 87; Telluride Power Trans. Co. v. Crane Co., 208 Ill. 218.

The test of the completeness of the writing is the writing itself. Clark v. Mallory, 185 Ill. 227. The contract in question is unambiguous and appears to be clearly and fully expressed by the writing in all its terms. It is a contract, in substance, by which appellant relinquishes all right, title and interest in said original contract and surrenders the same to Bliss and Barnes in consideration that they shall surrender to appellant the said bond and release all their right, title and interest therein to appellant. The consideration expressed is more than a mere statement of fact or acknowledgment of payment of a money consideration, and is in its nature contractual. It purports to be a contract, in substance, that Wilford is thereby doing an act in consideration that Bliss and Barnes have done or will do another act. It purports, in other words, to state all things to be done by both parties in the writing. The rule therefore applicable in case of the mere recital of money considerations and receipts thereof in deeds of conveyance do not apply to the contract in question. Ludeke v. Sutherland, 87 Ill. 481 and Kimball v. Walker, 30 Ill. 482, in which the reason for the rule in the case of deeds is set forth; and see also Jackson v. Railway Co., 54 Mo. App. 636; Purinton v. Northern Illinois R. Co., 46 Ill. 297; Cassilly v. Cassilly, 57 Ohio St. 582; Jackowski v. Illinois Steel Co., 103 Wis. 448; Milich v. Armour Packing Co., 60 Kan. 229; 17 Cyc. 659, 661, in which cases it is shown when the written consideration is more than mere recitals of money considerations and payments and therefore inalterable by parole evidence.

It follows from the foregoing that our conclusion must be that the court properly directed a verdict in this case, and it will not be necessary to consider the other questions raised on this record as to the invalidity of the bond of the citizens of Weaverville, and the right of appellee to make such a defense in this case.

The judgment is, therefore, affirmed.

Judgment affirmed.