Strickland v. Isett ( 1898 )

Opinion by

Mr. Justice McCollum',

There was no violation by the defendants of any of the provisions of the written contract between the parties. All the work to be done by the plaintiff under the contract was clearly defined therein, and so was the compensation he was to receive from the defendants for the performance of it. The compensation was measured by the quantity of logs and bark delivered and the stipulated price for cutting, peeling and delivering the same. Payments were to be made on account of it from month to month as the work progressed, reserving however to the defendants the right to retain twelve per cent of the compensation until the completion of the contract. To avoid misapprehension it was stipulated that all the work preliminary to the cutting, peeling and delivering of the logs and bark should be done by and at the cost of the plaintiff, except the sawing of the lumber necessary for the rails and plank for tramways and lumber for a stable, which work was to be done by the defendants without charge to him. It is not necessary to specify in detail all the terms of the written contract because the plaintiff’s suit is not based on it but upon the alleged breach of an alleged oral agreement by which he says he was induced to sign the contract as Avritten. It was therefore essential that the plaintiff, in order to maintain his suit, should establish by clear, precise and indubitable evidence, the alleged oral agreement and the terms thereof together with its relation to and agency in the creation of the written contract. It was also essential to the plaintiff’s, recovery that he should not only establish the oral agreement by the kind of evidence above defined, but that he should show by competent and satisfactory evidence a breach of it.

The plaintiff averred in his statement of claim that he was induced to sign the Avritten contract “ bjr a contemporaneous oral agreement of the defendants that they Avould furnish him the necessary capital and means to open up the forest, erect buildings, camps, slides, tramroads, skidAvays, trucks, bracket dams, and to clear out the stream for the purpose of floating logs,” and that they would also furnish him “horses, all necessary camp equipments, hay, feed, supplies, money and means for the purpose of cutting, peeling, skidding and delivering said logs in dam, and bark on side track, and to carry forward the work under said contract until by his earnings therein the defendants were repaid such advancements, and he was enabled to fulfil the written contract.” To sustain this averment the plaintiff relies on his own testimony and his indebtedness to the defendants arising from their monthly payments to him of more than the written contract called for. These payments extended over a period of five years and included the twelve per cent which the defendants were authorized by the contract to retain until its completion.

It seems to have been conceded by the plaintiff that at the end of the above stated period he was indebted to the defendants on account of these payments in the sum of $11,054.23, and it appears that lie was then unable to complete his contract if the defendants refused to increase his indebtedness to them by advances of money they were not bound by their written contract to make. They were unwilling to make such advances and, because of his inability to finish the work he had undertaken to do, they were compelled to assume the performance of it. Their refusal to increase his indebtedness to them constitutes the alleged breach of the alleged oral agreement on which this action is founded.

The plaintiff’s evidence in relation to the alleged oral agreement is not convincing or satisfactory. lie testified that he made it with Wray in the presence of Glunt on May 21, 1889, and that when the parties met at Bellwood on the 24th of the same month, for the purpose of reducing their entire agreement to writing it was understood between them that what he now designates as the oral agreement was an essential element or part of it, without which he would not sign it. He also testified in substance that the alleged oral agreement required Isett & Wray to furnish him the capital he needed to carry on the work specified in that part of his statement of claim above quoted, and that the capital so furnished was to be returned to them from his surplus earnings under the contract. In other words they were bound by the oral agreement to loan him from twenty to thirty thousand dollars as he might call for it to carry on the work he had expressly agreed to do at his own cost, and that they were bound to do this without assurance of repayment of the loan other than that contained in his promise to repay it when he should be able to do so. It matters not whether the money and supplies to be furnished under the alleged oral agreement are called advancements or loans, as they would, when furnished, certainly create and constitute a debt of the plaintiff to tbe defendant, and according to tbe plaintiff’s construction of said agreement it is possible that the debt created under it might exceed his estimate of the advancement or loan required for the performance of the work specified in it.

The testimony of Antes is claimed by the plaintiff as corroborative of his own testimony respecting an oral agreement. We cannot so regard it. The material part of it appears in, the charge of the learned trial judge, and the inclusion of it in this opinion is unnecessary. It contains no allusion to an oral agreement, and nothing which is substantially at variance with the contract as written. If it be conceded that Antes had, in June, 1889 and in January, 1893, the conversations with Wray that he testified to, it must also be conceded that it would severely tax human ingenuity to discover in them any corroboration of the testimony of the plaintiff in support of his claim of an oral agreement with the defendants which materially modified the written contract between them.

Against the testimony of the plaintiff in relation to the alleged oral agreement on which the suit is based, Ave have the clear and positive testimony of Wray that such an agreement was not entered into or suggested, the equally positive and clear testimony of Isett that he and the plaintiff and Wray met at Bell-wood on May 24, and there discussed and carefully considered and agreed upon all the terms and details of their contemplated contract, and that it was then and there reduced to writing, read over, and signed by all the parties to it; that this was the only contract or agreement between them, and that the first notice he. had of such an agreement as the plaintiff now-sets up, or of any proposition or request in accord with it, was after the institution of this suit. We have also the testimony of Grlunt in which it plainly appears that no such agreement as is testified by the plaintiff was made in his presence or hearing at any time.

We have already referred to the monthly payments which exceeded in amount the payments called for by the written contract, and to the plaintiff’s reliance upon them as corroborative of his testimony in support of his claim. The undisputed testimony of the defendants in relation to these payments deprives them of any corroborative force, and to them the decision of this court in Yeisley v. Bundel, 1 Monaghan, 67, is applicable. In that case as in this the plaintiff sought to modify a written eon-i tract by a contemporaneous parol agreement, and to corroborate bis own testimony in relation to tbe latter by showing payments on the former in excess of the amount called for therein. The payments were not allowed the effect claimed for them, and Mr. Justice Green, delivering the opinion of the Court, said: “ The fact that the defendant paid more than the contract called for proves nothing. He might well do so in order to get his house completed. That is the explanation he gives of it, and it quite meets and accounts for the fact itself.” We are unable to find in the letters from the defendants to the plaintiff or in the letter from them to his employees any corroboration whatever of the testimony of the plaintiff concerning the alleged oral agreement. The letter of June 3, 1892, was evidently thought by the plaintiff to have some corroborative force, but while it was admitted in evidence the learned trial judge said of it: “We have read this (the letter) over carefully and read it with reference to the stipulation in the article of agreement that they (the defendants) were to pay monthly, and while we submit it to you, we submit it with the remark that we are not entirely clear that this is an item of corroboration of the alleged parol agreement, for we find it entirely consistent with the written stipulation in the contract to pay monthly, but we will submit the matter to you with this observation.” It should not have been admitted for the purpose above stated, and the same may be said of most if not all of the corroborative evidence so-called.

On a careful reading and consideration of the testimony, and with special reference to that part of it which is supposed by the plaintiff to strengthen his main contention, we are convinced that it does not rise to the standard of proof which the law exacts in order to set aside or modify a written contract by a contemporaneous parol agreement. The decisions on this point are numerous and they are so familiar to the profession that it is not considered necessary to quote from or cite them. As our conclusion is adverse to the main contention of the plaintiff the matters subordinate or incident to it require no discussion or consideration.

Judgment reversed.