Horn v. Hansen

Vanderburgh, J.

The controversy in this case arises over a so-called “wheat ticket” issued by defendant, and now owned by plaintiff.

The plaintiff alleges that one Sylte, under whom he claims, sold and delivered to defendant forty-five bushels and twenty pounds of wheat, of the quality designated on the ticket, on the day of the date thereof, and that he thereupon issued to Sylte the ticket, which is as follows:

“No. 9,617. Date, Oct. 7, 1891. Theo. Hansen will pay to J. K. Sylte for forty-five 20/60 bushels, grade one, N. wheat. Ole Saterbakken, Buyer.”

It is also alleged that the wheat, on that day, was worth eighty-one cents per bushel. Judgment is accordingly asked for the value of the wheat. The defendant, in his answer, admits issuing the ticket, and the delivery of the wheat described therein, at that date, but alleges that he did not purchase the wheat, but received the same to hold for plaintiff as a bailment. The defendant does not deny that the “ticket” was issued for that number of bushels of wheat left with him, or that it was connected with that transaction, or that it was the evidence of his liability therefor. Indeed, defendant admits and insists, in his argument, that it was given in part performance of the actual agreement. But he says that the writing does not contain all the agreement, and he claims the right, not only to supplement it by parol evidence of so much of the entire agreement as is not expressed in writing, but to contradict the terms of the writing, because it is informal, and not a complete agreement, and for that reason he is not bound by it. But we think the writing, on its face, is a valid unilateral promise or agreement, if supported by a consideration, which may, of course, be shown by parol, since the agreement is not within the statute of frauds. The common-law rule permits this, and permits a contract to rest partly in writing and partly in parol, so that it may accordingly be proved by the writing and by parol. Wright v. Weeks, 25 N. Y. 158 ; Cummings v. Dennett, 26 Me. 397 ; Arms v. Ashley, 4 Pick. 74 .

*46 In this case the writing is silent as to the fact or time of the delivery of the wheat; and it might, therefore, be shown that the wheat therein referred to was actually delivered when the written promise was made, as admitted here, or at a subsequent day. In the latter case the writing would be construed as an offer or proposition good while it remained open; and if acted on, and the wheat delivered and accepted before it was withdrawn, the promise would thereupon become binding. 1 Story, Cont. § 572.

But the written proposal or promise could not be contradicted by parol, though it might be shown that it was or was not accepted, or that the stipulated quantity of wheat was or was not in fact appropriated to the agreement. jThe general rule is that the omitted portions of a contract which does not apper to be complete may be proved by parol, but so much of the contract as is in writing must be proved by the writing. Thomas v. Scutt, 127 N. Y. 138 , ( 27 N. E. 961 .) See Smith, Cont. *73; 1 Greenl. Ev. § 304.

It is true that in some instances an instrument purporting to be a contract, and actually signed by parties, may be shown not to be operative, for various reasons, or it may be controlled by an independent agreement not in writing. A conspicuous instance is the case of Domestic Sewing Mach. Co. v. Anderson, 23 Minn. 57 . No reason appears in this case why the writing in question should not be operative according to its terms. It is not claimed to have been issued through fraud, mistake, or inadvertence. For aught that appears, it is the conclusion of the parties in respect to so much of the agreement as is in writing, viz. that part of it which defines the defendant’s relation to the contract as that of purchaser, and not simply that of bailee.

The defendant’s principal assignment of error relates to the ruling •of the court rejecting his offer to show that, upon the date named in Exhibit A, said ticket was issued to the parties thereto for a portion •of a larger quantity of wheat delivered, “and for the purpose of indicating that the said wheat was held by the said Hansen subject to the order of Sylte.” So much of the offer was objected to .as tending to contradict the writing, and the objection was sustained. The ruling extended no further. For reasons already stated, we think the court ruled correctly. It did not, however, preclude the defendant from introducing evidence in respect to other *47 matters embraced in his general offer, or permissible under the rule above stated. The defendant, however, introduced no other evidence.

The defendant raises no question as to the plaintiff’s title to the wheat ticket, or the indebtedness represented thereby. And, there being no special agreement as to the price, the law will imply that the price to be paid was the fair market value of the wheat on the day of the delivery, being the date of the writing.

He does not deny that plaintiff claims under, and has succeeded to the rights of, the original payee, Sylte. He stands in the shoes of the latter; and the rule therefore applies, that as between parties to a written agreement, or their privies, parol evidence cannot be received to contradict or vary its terms. Strangers to a contract are, of course, hot bound by it, and the rule excluding extrinsic evidence in the construction of writings is inapplicable in such cases; and it is relaxed where either one of the parties between whom the question arises is a stranger to the written agreement, and does not claim under or through one who is a party to it. In such case the rule is binding upon neither. But it is manifestly inapplicable in this case.

It was admitted at the trial that the market value of the wheat on the day of its delivery — the date of the writing — -was eighty cents per bushel.

We think the court properly allowed interest from the date of the writing, the wheat having been already delivered. No date of payment is fixed in the writing. No credit is contemplated, and it was due presently.

Had there been simply a cash sale and delivery of the wheat, the amount due would have borne interest from the day of the delivery, and there is nothing in the writing qualifying such rule of liability. It is distinguished from a promise to pay upon demand, -which requires a demand, at least a judicial demand, to set the interest running. This distinction is recognized by the authorities. The rule, summarily stated, is that a note or other instrument containing an express promise to pay money, without any time specified, is in law payable immediately, and interest runs from its date. Farquhar v. Morris, 7 Term R. 124; Francis v. Castleman, 4 Bibb, 282 ; Rogers v. Colt, 21 N. J. Law, 19; Purdy v. Philips, 11 N. Y. 406 , 1 *48 Duer, 369 ; Selleck v. French, 1 Am. Lead. Cas. (4th Ed.) 507. Some authorities also distinguish between an express promise to pay-money, and a mere acknowledgment of indebtedness, or an I. O. U., Gay v. Rooke, 151 Mass. 115 , ( 23 N. E. 835 ,) — a point unnecessary to inquire into here.

Judgment affirmed.