Tracy v. Union Iron Works

29 Mo. App. 342, 1888 Mo. App. LEXIS 92

Opinions

Hall, J.

I think that this case is exactly parallel with the case of Pearson v. Carson, 69 Mo. 550, and is ■consequently controlled by it, unless it has been over ruled by tlie Supreme Court, and of this there is no pretense.

It is conceded by counsel for appellant that the general rule is, that verbal evidence “cannot be admitted to contradict, add to, subtract from, or vary a written instrument” (language of Phillips in his work on Evidence, approved in Bruce v. Beck, 43 Mo. 279), but they contend that the general rule does not apply to this case on two grounds: (1) That the verbal agreement in this case was collateral to the written lease, and not a part of it; and (2) that the written lease was accepted by defendant by reason and on account of the verbal agreement, and that to permit the plaintiff to take advantage of the omission of the said agreement from the lease would be to allow him to perpetrate a fraud upon the defendant.

The facts in the case of Pearson v. Carson were stronger in favor of the position that the verbal agreement was a distinct and independent agreement than are the facts in this case. That action was on the following contract:

“J. W. Carson has rented of R. W. Pearson one hundred and sixty acres of pasture land, on the Pearson farm, for the sum of ninety-five dollars — one-half to be paid on the fifteenth day of August, 1875, the balance to be paid on the first day of November, 1875. Said Pearson acknowledges the receipt of ten dollars on payment.

“Signed. J. W. Carson.

“ R. W. Pearson.”

The defence made is' thus stated in the opinion of the court: “As a defence to this action, which was for the last instalment, which had not been paid, the defendant proposed to prove that he was the owner of a lot of Texas cattle, and rented this pasture to feed them during the feeding season ; that plaintiff agreed to keep up and maintain the fence around the pasture and to look after said cattle; that said lands were not fenced as represented, and the fences were not kept up, except for about four weeks, and his cattle strayed away, and he was unable to keep them in said pasture.” The trial court refused to allow the evidence, and in so doing was sustained by the Supreme Court. The court said: “In effect, the evidence would engraft on the written contract two very material additions to it, and impose on the owner two obligations which the contract does not impose, to-wit, to keep the fences in repair and look after the cattle.” The case of VanSluddiford v. Hazlett, 56 Mo. 322, and Life Association of America v. Cravens, 60 Mo. 388, are unlike the present, and so are the cases of Moss v. Green, 41 Mo. 390, and Rollins v. Claybrook, 22 Mo. 405. “ The written contract in the present case is-complete, and to introduce the provisions proposed,relating as they'do to the same subject-matter, would add to and vary the written agreement.”

In Smith v. Williams, 1 Murphy, 430, Judge Taylor observes : “The first reflection that occurs to the mind upon the statement of the question, independent of any technical rules, is, that the parties, by making a written memorial of their transaction, have impliedly agreed that, in the event of any future misunderstanding, that writing shall be referred to as the proof of their act and intention ; that such obligations as arise from the paper by such construction, or legal intendment, shall be valid and compulsory on them, but that they will not subject themselves to any stipulations beyond the contract, because if they meant to be bound by any such, they might have added them to the writing, and thus have given them a clearness, a force, and a direction which they could not have by being intrusted to the memory of a witness.” This remark by Judge Taylor, clear and explicit as it is, might have been written as entirely applicable to the case we now have under consideration. The plaintiff and- defendant both went to the farm of plaintiff, and examined the pasture. They returned to Mexico, twelve miles off, and defendant himself there wrote this contract. Nothing is said in it about keeping up the fences by plaintiff, or about his duty to look after the stock. Whether the plaintiff would have let this pasture for ninety-five dollars with these material additional burthens on him, we are left to conjecture, and must rely on the verbal statement of either the defendant or the plaintiff, and, as Judge Taylor well says, “the object of the paper writing was, incase of subsequent misunderstandings, that it alone should show what their acts and intentions were.”

As to the first reason relied upon by counsel for appellant in support of their position, it was added : “In Lane v. Price, 5 Mo. 101, the precise question was decided by this court. Judge McGirk, in that- case, conceded the correctness of the general principles on which the case was decided, but denied their applicability to the facts of that case, on the ground that the parol contract was a substantive and distinct one, in nowise changing or enlarging the written contract. In this case it is clear that the parol evidence offered makes a material addition to the written contract. It requires the owner of the pasture to keep up the fences and to look after the stock; both of these requirements recognizing a lease, but a lease upon terms nowhere indicated in the written contract, and materially added to it.” This language conclusively disposes of the position that the verbal agreement in this case is a distinct agreement, collateral to, and not a part of, the lease.

As to the question of fraud, the court said : “ It is not pretended that any fraud was practiced by the proprietor, the plaintiff, since the defendant visited the farm, and could see for himself the condition of the fences, as well as the plaintiff, and he drew up the contract himself, and seemed to think that any obligation of plaintiff on that subject was unnecessary.” This would seem to dispose of the defence in this case based upon fraud. But it is only fair to admit that the defence was not presented to, or considered by, the court in the light in which it is so clearly and forcibly presented in this case. The defence, however, is not maintainable when considered as an original proposition, in my opinion. It is not sought to avoid the written' lease because of any fraud or mistake in omitting the verbal contract or stipulation from it; but it is sought to treat the verbal contract.as a part of the lease, notwithstanding it was omitted therefrom. It is sought to do this on., the principle of estoppel. It is argued that,' because the defendant was induced to execute the lease with the verbal stipulation omitted from it by the plaintiff’s ■statement to the effect that it would be regarded as a part of the lease as much as if it were written in it, then it is a part of the lease, for the reason that otherwise the plaintiff would be permitted to perpetrate a fraud upon the defendant. In short, the position is taken that ■since the plaintiff induced the defendant to execute the written lease by the representation that the oral stipulation would be deemed a part of the lease, the plaintiff is estopped from claiming that the stipulation is not a part of the lease. The cases cited by counsel from Pennsylvania and California support this position. But I am constrained to differ from them. This very ■question: arose in Ins. Co. v. Mowry, 96 U. S. 546, and was decided contrary to the view expressed in these ■cases. That was an action on a policy of insurance. The court,‘by Field, J., said:. “By the express condition of the policy, the liability of the company was released upon the failure of the insured to pay the premium when it matured; and the plaintiff could not recover, unless the force of this condition could in some way be overcome. He sought to overcome it, by showing that the agent, who induced him to apply for the policy, represented to him, in answer to suggestions, that he might not be informed when to pay the premiums, that the company would notify him in season to pay them, and that he need not give himself any uneasiness on that. subject; that no such notification was given him before the maturity of the second premium, and for that reason he did not pay it at the time required. This representation before the policy was issued, it was contended in the court below, and in this court, constituted an estoppel upon the company against insisting upon the forfeiture of the policy. But to this position there is an obvious and complete answer. All previous verbal arrangements were merged in the written agreement. The understanding of the parties as to the amount of the insurance, the conditions upon which it should be payable, and the premium to be paid, was there expressed, for the very purpose of avoiding any controversy or question respecting them. The entire engagement of the parties, with all the conditions upon which its fulfilment could be claimed, must be conclusively presumed to be there stated. If, by inadvertence or mistake, provisions other than those intended were inserted, or stipulated provisions were omitted, the parties could have had recourse for a correction of the agreement to a court of equity, which is competent to give all needed relief in such cases. But, until thus corrected, the policy must be taken as expressing the final understanding of the assured and of the insurance company. The previous representation of the agent could in no respect operate as an estoppel against the company. Apart from the circumstance that the policy subsequently issued alone expressed its contract, an estoppel from representations can seldom arise, except where the representation relates to a matter qf fact, to a present or past state of things. If the representation relates to something to be afterwards brought into existence, it will amount only to a declaration of intention or of opinion, liable to modification or abandonment upon a change of circumstances of which neither party can have any certain knowledge. The only case in which a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others,’ and by which they have been induced to act. An estoppel cannot arise, from a promise as to future action with respect to a right to be acquired upon an agreement not yet made. The doctrine of estoppel is applied with respect to representations of a party to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect, if a party, who, by his statements as to matters of fact, or as to his intended abandonment of existing rights, had- designedly induced another to change his conduct or alter his condition in reliance-upon them, could be permitted to deny the truth of his statements, or enforce his rights against declared intention of abandonment. But the doctrine has no place for application when the statement relates to rights depending upon contracts yet to be made, to which the person complaining is to be a party. He has it in his power in such cases to guard in advance against any consequences of a subsequent change of intention and conduct by the person with whom he is dealing. For compliance with arrangements respecting future transactions, parties must provide by stipulations in their agreements when reduced to writing. The doctrine carried to the extent for which the assured contends in this case would subvert the salutary rule, that the written contract must prevail over previous verbal arrangements, and open the door to all the evils which that rule was intended to-prevent.”

I have quoted from the foregoing opinion at such length, because it furnishes a complete answer to the-argument in support of the contrary view, and also because this court has followed that opinion in Greenwoods. Ins. Co., 27 Mo. App. 401.

In White v. Ashton, 51 N. Y. 285, the same doctrine is ahnounced. In answer to the argument in supjiort of the contrary view, the court says: “This argument is plausible, but it is not sound. Its allowance would overthrow the well-established rule, that the writing must prevail over any and all previous parol agreements it is a common, almost an inevitable result, that the party who relies upon a parol understanding, in hostility to, or unsupported by, the written contract, suffers damage. It is the fact existing in nearly every one of that class of cases, that the party who claims the rigor of the writing inflicts an injury upon his confiding neighbor who trusts to a verbal assurance. While we lament that a higher standard of honor does not prevail, we must stand by the well-settled rules of law. In this case the carrier had the right to look into his bill of lading, and be governed by what he there should read. We do not know what necessities operated to change his avowed intention of taking the inner route, nor should we be justified in canvassing them. It is enough that he chose to stand by his writing. I am not aware of any principle of estoppel which can be applied to the case. An estoppel in pais is sometimes invoked to exclude a party from showing the truth, when by his acts or declarations he has induced another to act in a particular manner. In such a case he will not be permitted to deny the truth of his admission if the consequence would be an injury to such other person. 1 think it will be found that the present case does not fall within this principle. Here was a promise simply to do a given thing, allowing the utmost force to the evidence and the offers, to-wit, to transport the goodá by the inner route. There was no assertion of an existing fact, the truth of which the party now wishes to disprove. He failed to perform his verbal agreement. Is there any .case which, upon the principle of estoppel, will prohibit his taking advantage of the rule that this agreement was merged in writing % ” After a review of the authorities, it is added: “None of them cover the present case or give countenance to the idea that the principle is to subvert that other principle, that all prior or contemporaneous parol agreements are absorbed in the writing by which the contract is consummated.”

The rule on this subject is thus stated by Mr. Bigelow, in his work on Estoppel: “So, too, it may be broadly stated that a parol promise, made in conjunction with, and intended to constitute, one of the terms of a written contract, bat not incorporated into the written instrument, cannot operate by estoppel; though cases may arise where fraudulent promises of the kind would be entitled to the consideration of the courts.” Big. Estop. (3 Ed.) 489. Not wishing to draw out this opinion to greater length, I content myself with saying that the exception stated by Mr. Bigelow, if indeed it be a valid exception, does not, as the authorities supporting it show, include this case.

The verbal stipulation or agreement relied on by defendant must be deemed to be merged in the written lease. The defence set up was not maintainable.

The judgment of the circuit court should be affirmed.

With the concurrence of Ellison, J., it is so ordered. Philips, P. J., dissents.

Philips, P. J., being of opinion that the decision is in conflict with the opinion of the Supreme Court in Brown v. Bowen, 90 Mo. 185, this case is certified to the Supreme Court.