Ross v. Stricker , 275 P.2d 991 ( 1954 )

BLACKBIRD, Justice.

The verdict and judgment of $5,700 plaintiff in error obtained against defendant in error, W. H. Strieker d/b/a Mule Skin Brown Company, previous to the judgment ordering a new trial which he herein appeals from, was for damages on account of defendant in error’s alleged failure to carry out a contract to employ him in his Sand Springs’ store, for a period of one year. The parties appear herein in the same relative positions they occupied in the trial court.

Plaintiff’s theory was that the contract by which defendant agreed to employ him was partly oral and partly written, the written part being depicted by a letter, note or memorandum drawn up at his request and dictated in defendant’s office (where plaintiff had gone in answer to defendant’s newspaper advertisement), and handed to him at the conclusion of the only conference between the two concerning the matter. This writing, signed by defendant’s son, is as follows:

“Mule Skin Brown

111-113-115-117-119 North Main Sand Springs, Oklahoma.

July 5, 1951.

To Mr. Ross:

This will confirm our agreement which we have entered into this fifty day of July 1951.

Mr. Ross is to receive a salary of $250.00 per week, plus three percent on all sales made in any of our three stores with the exception of the Ladies Ready to Wear dept. Commissions are to be tabulated every Friday to be paid to Mr. Ross on every Saturday with his weekly salary check of $250.00.

This agreement entered into and agreed upon in anticipation that it will promote and developed a successful and strong company and likewise be profitable to Mr. Ross.

Mule Skin Brown

/S/ Charles W. Strieker Charles W. Strieker.”

After plaintiff had left defendant’s office and defendant or his son had made a further and independent investigation of plaintiff’s suitability and fitness for the position described in the above writing, and before plaintiff ever assumed the duties of such employment, it was decided not to employ him; and thereupon he was telephoned and apprised of that fact.

It will be noted that the above writing or memorandum contains no reference to the term or duration of plaintiff’s employment, and defendant’s theory was and is that the above writing constituted art integrated contract and therefore it could not be added to by parol or oral testimony. At the trial, however, plaintiff was allowed to testify that in the oral negotiations leading up to the composition and signing of the above quoted letter or memorandum, it was orally agreed that he was to be employed for one year, and that:

“Mr. Strieker stated he wanted a permanent man in there to assist his son and teach his son the business. That his son was virtually new in there. He was turning everything over to his son eventually because of his health. He had had sickness and one thing and another and that young Mr. Strieker, Charles Strieker, he wanted to get him eventually prepared to take over the entire operations.”

Plaintiff testified that he had been in the furniture business, as an executive, practically all of his life; that a short time previous to his moving to Tulsa he had been an executive with the Libby Corporation (furniture dealers) at Chicago for more than ten years; that his salary with said company was $350 per week and that in addition thereto he had received other amounts of gifts, as their general merchandising manager of its entire chain; that discussing the contract with defendant plaintiff informed them that he was considering going back to work with the Libby Corporation; that the Libby Corporation had offered plaintiff his old position at his former salary; that after entering into the contract with defendants he severed his commitments for other employment; that by entering into the contract with defendants and the cancellation of said contract by defendants, he had lost the opportunity of returning to his former position; that a position as a furniture executive is very hard to find because such positions are very rare. The trial judge’s instructions to the jury were upon the theory that the parties’ contract could have been partly oral and partly written, but upon consideration of defendant’s motion for a new trial, the judge apparently decided he had been wrong, and thereupon sustained said motion. The court’s views at that time are reflected in his remarks, definitely restricting his ruling as follows:

“Gentlemen in this case of Ross v. Strieker, in passing upon the defendant’s motion for new trial, I have considered the various grounds advanced in the defendant’s motion for new trial. I am of the opinion that all the grounds except one, advanced by the defendant in his motion for new trial are without merit. However, I am of the opinion that one of the points involved and advanced by the defendant in his motion for new trial is decisive in this matter and that point is this. Where there is a written contract of employ-: ment, which is not ambiguous, which contains no term of duration, may parole evidence be introduced over proper objection to show the term of duration was for one year? I am of the opinion that the Supreme Court of this State has answered that question in the case of Foster v. Atlas Life Insurance Company reported in 154 'Oklahoma, page 30, 6 P.2d page 805, wherein the Court held that a contract for employment which was very similar to the contract at bar, and no time of duration of employment was- specified and the plaintiff sought to establish the duration of time of employment by parole evidence, the Court held in Foster v. Atlas Life Insurance Company that parole evidence was not admissible. I regard this case as absolutely binding and conclusive on the parole evidence issue, and am thus required by the case cited to sustain the motion for new trial. M-ay it be clearly understood that the Court is of the opinion that all the other grounds advanced by the defendant for a new trial are without merit, and that the Court is of the opinion that they are without merit.

* * * * * *

“The sole reason that this court is sustaining the motion for new trial of the defendants is the opinion of the court, that the Foster v. Atlas Life Insurance Company case cited above, is-absolutely binding and controlling .on this court.”

In view of the above and the arguments in the briefs, it is plain that the foremost question involved in this appeal. is the correctness of the trial judge’s view that under this court’s opinion in Foster v. Atlas Life Insurance Co., 154 Okl. 30, 6 P.2d 805, 806, the trial court committed reversible error in admitting plaintiff’s testimony -above referred to, which had the effect of engrafting upon the parties’ contract, as revealed by the above writing, the additional provision for one year’s employment thereunder. • Defendant takes the. position that the writing discloses the entire contract between the parties, and urges that since said contract contains no provision as to its term or duration, the admission of the plaintiff’s testimony was in violation of the “parol evidence rule.” The rules announced in the syllabus of the cited case are undoubtedly well established abstract propositions of law. Whether they were properly applied to the fact situation in that case in view of some of the more modern trends of thought (see authorities, infra) is unnecessary here to determine, because, as we view the matter, that case may be readily distinguished from the present one. There the writing was referred to and deemed a contract, while here the writing is merely a written memorandum or evidence of a previous oral contract. In plaintiff’s brief, our attention is directed to the fact that the instrument in the Foster case began with the words: “It is hereby agreed * * * ”, while here the writing specifically refers to a previous agreement and does not purport, in itself, to be a complete and formal contract. The opinion in the Foster case contains the following quotation from 22 C.J. p. 1075:

“The legal effect of a written instrument, even though not apparent from the terms of the instrument itself, but left to be implied by law, can no more be contradicted, explained or controlled by parol or extrinsic evidence than if such effect had' been expressed. * * * ”

Further in the same paragraph of the quoted text, it is said:

“It would seem, however, that practical difficulty must arise in the application of this rule by reason of another rule, equally well established, that where a writing does not express the entire agreement of the parties, extrinsic evidence is admissible with respect to the matters not provided for in the writing * *

The rule concerning a “continuing execu-tory contract” quoted in the Foster opinion from page 1076 of the same text has been omitted from the same title in the newer work, Corpus Juris Secundum; and in 32 C.J.S., Evidence, § 999, on pages 978 and 979, we find the following:

“Whether, on the one hand, a written' instrument is so complete as to exclude parol.evidence of a prior or contemporaneous oral agreement or, on the other hand, the oral agreement is collateral and parol evidence thereof is admissible, depends on whether the parties to the written contract intended the instrument to include all promises and to' cover all subjects on which they negotiated. The completeness of the instrument for this purpose may appear on its face, as where the instrument expressly states that it contains the entire agreement or agreements between the parties, or that it supersedes all prior agreements, or employs other language manifesting an intent of the parties not to be bound by any agreement not expressed therein. So also the incompleteness of the instrument may appear on its face, as where it expressly refers to, or rec-ognises the existence of, other agreements between the parties, it being permissible, in case of a'direct reference to a verbal agreement, to prove such agreement, even though the effect of the proof is to add material terms and conditions to the contract evidenced by the writing.” (Emphasis added.)

See also Laskey v. Rubel Corp., 303 N.Y. 69, 100 N.E.2d 140; 12 Am.Jur., Contracts, Secs. 228, 241; 3 Williston on Contracts (Rev.Ed., 1936) Secs. 633, 636, pages 1820 to 1822, 1830 to 1832; Restatement of the Law, Contracts, Secs. 228, 239, 240, 242, and consider the discussion and authorities cited in the article at 53 Yale L.J. 603. In First National Bank in Tonkawa v. Beatty, 172 Okl. 47, 45 P.2d 158, this court referred to a well established previously adhered to rule cited in the earlier case of Holmes v. Evans, 29 Okl. 373, 118 P. 144, 146, as follows:

“When the writing does not purport to disclose the complete contract, or if, when read in the light of attendant facts and circumstances, it is apparent that it contains only a part of the agreement entered into by the parties, parol evidence is admissible to show what the rest of the agreement was; but such parol evidence must not be inconsistent with or repugnant to the intention of the parties as shown by the written instrument, for, where a contract rests partly in parol, that part which is in writing is not to be contradicted.”

See other cases cited in 6 Oklahoma Digest under Evidence, and annotations following 15 Okl.St.Ann. § 137, Notes 6, 7, 18, 19 and 22.

The rule is applicable to employment contracts and at 32 C.J.S., Evidence, § 1003, page 992, is stated as follows:

“The existence of a written contract of employment does not preclude the admission of parol evidence of prior or contemporaneous collateral agreements between the employer and employee, which are not inconsistent with, or contradictory of, and do not vary or change the writing, and which relate to a matter as to which the writing is silent, where the writing is incomplete or expressly refers to extrinsic agreements without stating them.” (Emphasis added.)

This same principle was applied in Leifer v. Scheinman, Sup., 162 N.Y.S. 1086, later appeal, 179 App.Div. 665, 167 N.Y.S. 105, where it was held:

“A plaintiff suing for the breach of a written contract of hiring which is silent as to the duration of the employment may give oral evidence as to the period of the hiring for it does not contradict or vary the terms of the written contract but merely shows a portion of the agreement not reduced to writing.”

For other cases on this and related subjects see the Annotations appearing at 68 A.L.R. 1251; 70 A.L.R. 753; 32 C.J.S., Evidence, §§ 997-1002, inc. Thus it will be seen that whether the writing in this case be regarded as an incomplete written contract or an incomplete memorandum of a previous oral contract, plaintiff’s evidence to the effect that the term of the employment agreed upon (as to which the writing is silent) was admissible and the cause was correctly submitted to the jury on the theory that there was more to the parties’ agreement than appeared in the written letter or memorandum hereinbefore quoted. It follows therefore that the trial court’s action in sustaining defendant’s motion for a new trial on the mistaken belief that this was prohibited under controlling principles of law and Foster v. Atlas Life Insurance Company, supra, was error. The judgment is therefore reversed.

JOHNSON, V. C. J., and WELCH, CORN, and DAVISON, JJ., concur. HALLEY, C. J., and WILLIAMS, J., dissent.