Smith v. Mussetter

Supreme Court of Minnesota

Smith v. Mussetter

59 N.W. 995, 58 Minn. 159, 1894 Minn. LEXIS 371

CourtSupreme Court of Minnesota

DecidedJuly 10, 1894

DocketNo. 8836

StatusPublished

Cited by14 cases

This text of 59 N.W. 995 (Smith v. Mussetter) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Mussetter, 59 N.W. 995, 58 Minn. 159, 1894 Minn. LEXIS 371 (Mich. 1894).

Pincite

Opinion

Mitchell, J.

Appeal from an order striking out an answer as sham and frivolous.

Of course, no rule is more elementary than that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.

But the rule is almost equally well settled that parol evidence may be given to prove the existence of any separate parol agreement constituting a condition precedent to the attaching of any obligation under the written instrument. This is not to vary a written instrument, but to prove that no contract was ever made, — that its obligation never commenced. In Westman v. Krumweide, 30 Minn. 314, (15 N. W. 255) (followed in subsequent cases), we held, in deference to the great weight of authority, that under this rule, where an unsealed written instrument is signed, and delivered to the proper party, parol evidence is admissible to show that notwithstanding such delivery the agreement of the parties was that such instrument should become operative as a contract only upon the happening of a future, contingent event. The dangers from this rule, and the consequent caution that should be exercised in considering a defense of this nature, were adverted to in Minneapolis Threshing Ma[162]*162chine Co. v. Davis, 40 Minn. 110, (41 N. W. 1026,) but the rule is now too firmly established in the law to be changed.

The principal question on this appeal is whether the answer set up an agreement (shown by affidavit to have been oral) that the note sued on should become operative as a contract only on the happening of a future, contingent event; or a parol condition, not expressed in the instrument, attached to the obligation of the contract. In other words, whether it means that the happening of the future contingent event was to be a condition precedent to-the note becoming operative at all as a contract, or whether it means that the obligation of the contract was not absolute, according to its terms, but only conditional. The answer is not a model pleading, but, taking it as a whold, we are of the opinion that what the pleader intended was to allege that the delivery of the note was only conditional, and that it was to become operative as a contract only on the happening of a future, contingent event.

The interposition of a sham pleading always involves a certain element of bad faith, and to strike out a pleading as sham is a somewhat summary remedy. Therefore, although this answer might have been subject to a motion to make it more definite and certain, yet if it will reasonably admit of being construed as alleging, although inartistically, a valid defense, it ought not to have been stricken out as sham. For this reason the order appealed from must be reversed, but, as we do not think such loose pleading should be encouraged, no statutory costs will be allowed to the appellant.

Order reversed.

Buck, J., absent, sick, tooir no part.

(Opinion published 59 N. W. 995.)

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Mitchell, J.

Appeal from an order striking out an answer as sham and frivolous.

Of course, no rule is more elementary than that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.

But the rule is almost equally well settled that parol evidence may be given to prove the existence of any separate parol agreement constituting a condition precedent to the attaching of any obligation under the written instrument. This is not to vary a written instrument, but to prove that no contract was ever made, — that its obligation never commenced. In Westman v. Krumweide, 30 Minn. 314, (15 N. W. 255) (followed in subsequent cases), we held, in deference to the great weight of authority, that under this rule, where an unsealed written instrument is signed, and delivered to the proper party, parol evidence is admissible to show that notwithstanding such delivery the agreement of the parties was that such instrument should become operative as a contract only upon the happening of a future, contingent event. The dangers from this rule, and the consequent caution that should be exercised in considering a defense of this nature, were adverted to in Minneapolis Threshing Ma[162]*162chine Co. v. Davis, 40 Minn. 110, (41 N. W. 1026,) but the rule is now too firmly established in the law to be changed.

The principal question on this appeal is whether the answer set up an agreement (shown by affidavit to have been oral) that the note sued on should become operative as a contract only on the happening of a future, contingent event; or a parol condition, not expressed in the instrument, attached to the obligation of the contract. In other words, whether it means that the happening of the future contingent event was to be a condition precedent to-the note becoming operative at all as a contract, or whether it means that the obligation of the contract was not absolute, according to its terms, but only conditional. The answer is not a model pleading, but, taking it as a whold, we are of the opinion that what the pleader intended was to allege that the delivery of the note was only conditional, and that it was to become operative as a contract only on the happening of a future, contingent event.

The interposition of a sham pleading always involves a certain element of bad faith, and to strike out a pleading as sham is a somewhat summary remedy. Therefore, although this answer might have been subject to a motion to make it more definite and certain, yet if it will reasonably admit of being construed as alleging, although inartistically, a valid defense, it ought not to have been stricken out as sham. For this reason the order appealed from must be reversed, but, as we do not think such loose pleading should be encouraged, no statutory costs will be allowed to the appellant.

Order reversed.

Buck, J., absent, sick, tooir no part.

(Opinion published 59 N. W. 995.)

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59 N.W. 995, 58 Minn. 159, 1894 Minn. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-mussetter-minn-1894.

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