Fiers v. Jacobson ( 1949 )

On February 26, 1944, the plaintiff Albert Fiers and the defendants L.O. Jacobson and Mrs. Ella Jacobson deliberately put their agreements concerning the lands here involved in the form of a written contract to which each subscribed.

Such written agreement "may be altered by a contract in writing, or by an executed oral agreement, and not otherwise." Section 7569, R.C.M. 1935. Emphasis mine.

This statute declares a rule of substantive law which rests on the doctrine that when parties have deliberately put their agreements in the form of a written contract they shall not be allowed to show that the agreement was something else and even though testimony in violation of the statute be admitted at the trial, such testimony has no legal effect. Bauer v. Monroe, 117 Mont. 306, at pages 313, 314, 158 P.2d 485. Here there is neither "a contract in writing" nor "an executed oral agreement" altering the original written agreement. Hence such agreement so made and executed on February 26, 1944, continues and remains as written. On these grounds I concur in the result.

Rehearing denied December 12, 1949.