Strike v. White ( 1936 )

WOLFE, Justice.

I concur, but on a different ground. The agreement for the sale of the Strike interests apparently gave White possession of the Star Theatre from the date of the contract, October 4, 1934. Up to that date A. B. Floor and plaintiff, Strike, were to share the profits of what was in legal form a corporation, but in reality a partnership. After that date, Floor and White were to become partners. Strike’s stock in the amusement company, together with a bill of sale and disclaimer from creditors, were to be placed in escrow by Strike and a cashier’s check for $6,000 by White to be cross-delivered by the bank upon the obtaining of a certificate of dissolution of the corporation and proof of payment of all creditors. Meanwhile, White was evidently running the theatre and obtaining the revenues. The agreement provided that Strike would assume and “discharge all outstanding obligations and liabilities of every kind and nature now outstanding against the amusement company and said Star Theatre within 90 days from the date hereof” (italics supplied). Naturally, the word “now” becomes important. If possession, management, and profits were to go to White after October 4th, he was probably to assume and pay all debts incurred or arising after October 4th for services rendered or rental of the sound machine due for the period in which he was in enjoyment of the theatre. Therefore, the question is: Was the $508 which Strike seems to have been required to pay an obligation “now” outstanding on October 4th, or was it something which would arise after that date according to a contract with the Electrical Research Products, Inc. ? If it was the latter, it is truly a debt of White, and if Strike paid it to fulfill the technical requirements of his agreement, he is entitled to be reimbursed. But we have not the agreement between the amusement company and the Electrical Research Products Company in the record. It was excluded from the evidence. Only if that agreement would show that the $508 was an outstanding obligation on October 4th by Strike, would parol evidence that White had agreed to a bill of sale containing a clause that he, White, should pay it, indirectly vary the written contract. If it was not then outstanding but arose as the sound machine was continued in use, there would be no variation of the written contract. It would be a matter not covered by the contract and as to such matter the verbal agreement of the parties might be shown. It is because I think the case cannot be properly decided until the contract between the amusement company and the Electrical Research Company is in evidence and the legal nature of the payments called for by that contract construed by the court that I concur in a reversal and the granting of a new trial. When this contract is before us, we may determine whether the parol evidence rule applies as to the conversation regarding the bill of sale which was placed in escrow and which White refused to accept in toto. As the record stands, there is a conflict of evidence on the question of whether White agreed verbally to the contents of the bill of sale and therefore to its provision that he should assume “all future rentals for services in connection with the sound equipment contract.” If the contract between the amusement company and the Electrical Research Company shows an outstanding obligation owed to the latter before October 4th, then perhaps the opinion is correct that to permit oral evidence that White had agreed to the bill of sale would indirectly vary the written terms of their contract. But if the contract with the electrical company shows that it was not an outstanding obligation at that time, there is no place for the parol evidence rule. There is then a matter not covered by the main contract. The very assignment of the sound equipment contract as an asset of the amusement company may carry with it the obligation by White to pay all future rentals for service.