Williams v. McLean

BaeNhill, J\,

concurring: It is true that when a contract is reduced to writing in its entirety it is binding upon the parties thereto and it cannot be enlarged, changed, modified, varied or contradicted by parol evidence. It is equally true that a contract not required to be in writing may be partly in parol and partly in writing. In which category does plaintiff’s case fall? This is the real question presented by the petition to rehear. In my opinion it fits squarely within the second.

It clearly appears that plaintiff contracted to buy the land known as the Green Yalley Dairy Farm and the personal property in the nature of the farm implements and equipment located thereon. Defendants suggested the scheme followed by them under which they purchased and took title to the farm. They then executed and delivered to plaintiff an option to buy the land less 13 acres which was omitted from the map they furnished. When plaintiff exercised the option, paid the consideration and took deed for the farm, less the 13 acres, with knowledge of the facts, he estopped himself from thereafter asserting a contrary agreement as to the land. But that relates to the real property only.

When plaintiff’s agent paid the option money he inquired about the personal property and defendant McLean replied, “I don’t know, we will go around to Les’ (defendant Bullard) if he moved any of them, he has got them, we will be glad to take them back, they were in the trade. . . . I know the cooling system is there and the other ought to be and we will go down and see what Les has done with it.” Plaintiff’s agent, accompanied by McLean, then saw the defendant Bullard, who, speaking of the personal property, said, “I moved a piece or two of the personal property, and if it is all right with Mr. Williams I will be glad to take it back.” Bullard then took him and showed him where he had moved plows, a tractor and other farming implements. There is other evidence to like effect.

At the time the option was exercised defendants were not present but were represented by counsel. At that time no reference was made to the personal property. However, plaintiff shortly thereafter again made inquiry as to the personal effects and the defendants again acknowledged that some of the farming implements and equipment had been removed for safekeeping and promised to return same.

This and like evidence, in my opinion, negatives any contention that the parties intended that the option agreement should express the entire contract or that it should represent the sole memorial or integration thereof. All the evidence is contra such an intent. Hence, parol evidence to establish that part of the agreement which was not reduced to writing and which in law may rest in parol is permissible.

While defendants’ evidence may paint quite a different picture the record before us requires a modification of the original opinion. The plaintiff is entitled to go to the jury on his claim to the personal-property he alleges he purchased.