Opinion
Decided December 1, 1936.
The parol evidence rule excludes evidence of only those parol agreements at variance with a written contract which were made contemporaneously with or prior to the integration of the contract in writing. After a contract to perform work on an article has been fully performed and payment made, an agreement to rescind, if the purchaser shall find the article unsatisfactory, is invalid where supported by no other consideration than the purchaser's promise to perform his contractual obligations already assumed. An oral agreement to rescind a written agreement of sale which has been fully executed is not a collateral contract independent of the agreement.
ASSUMPSIT, to recover the purchase price paid for a truck. A trial by jury resulted in a verdict for the plaintiff.
On September 5, 1932, the plaintiff called at the defendant's garage for the purpose of purchasing a truck for use in his business as a highway patrolman. The defendant's general manager showed him the body of one and the chassis of another, both used, which seemed to the plaintiff suitable for his purpose and he agreed to purchase them, paying therefor $245 and his old truck, provided the defendant would mount the selected body on the selected chassis. This the defendant agreed to do, and did, and on September 7, the plaintiff returned, paid the balance of the purchase price, left his old truck, and drove his purchase away. On the day following the plaintiff discovered that the truck which he had bought was not suitable for the work required of it, and he returned it to the defendant's place of business and demanded his money back. The defendant refused to comply with this demand, but, after some discussion, permitted the plaintiff to take his old truck back and leave the one which he had just bought.
At the trial the plaintiff was permitted to introduce testimony to the effect that upon either September 5, or September 7, the defendant's general manager agreed that the plaintiff might try out the new truck for a week, and, if it did not prove satisfactory, that he might return it and have his money back. The general manager denied that he made such an agreement.
The defendant produced at the trial a written contract of sale, signed by both parties, bearing at the head the date of September 6, and at the foot the date of September 7. The general manager above referred to testified that it was really signed on September 5. This contract was absolute and unconditional in form, and contained the following provision: "There are no promises, verbal understandings, or agreements of any kind, pertaining to this contract other than specified herein."
The defendant seasonably objected and excepted to the admission of the testimony concerning the parol agreement to rescind the contract of sale if the truck should later prove unsatisfactory, and excepted to the denial of its motions for a nonsuit and for a directed verdict. Its bill of exceptions was allowed by Young, J.
Ivory C. Eaton (by brief and orally), for the plaintiff.
James A. Broderick and Maurice A. Broderick (Mr. Maurice A. Broderick orally), for the defendant.
The evidence is conflicting not only as to the date of the written contract of sale but also as to the date of the alleged oral agreement to rescind it. As a result of this conflict it could be found that the oral agreement was made either after, contemporaneously with, or before the written one. In the event of a finding that the oral agreement was made after the written contract the parol evidence rule would not apply because that rule operates to exclude evidence of only those parol agreements at variance with a written contract which were made contemporaneously with or prior to the integration of the agreement in writing. Shattuck v. Robbins, 68 N.H. 565; Piper v. Meredith, 83 N.H. 107, 112; 2 Will., Contracts, s. 632; 5 Wig., Evidence, s. 2441. It does not follow from this, however, that the plaintiff is entitled to recover on the alleged oral agreement as a subsequent independent contract. The reason for this is that the plaintiff gave or promised no valid consideration for the alleged promise of the defendant to rescind if the truck should prove inadequate. The most that he could be found to have given as consideration for the defendant's promise to rescind upon condition was his promise to continue to perform the contractual obligations which he had already assumed by signing the written contract of sale. This, with certain exceptions not here material, is not such consideration as will support a promise. Eleftherion v. Company, 84 N.H. 32, 34, and cases cited.
On the other hand, if the other interpretation of the evidence is accepted, that is, if it is taken to establish that the oral agreement was made either contemporaneously with or prior to the writing, then the parol evidence rule does apply and the evidence of the oral agreement is inadmissible.
The plaintiff's contention that the oral promise related to a matter not covered by the written contract but supplementary to it, in other words, that it was a separate and separable undertaking not within the four corners of the writing, as was the situation in Webber v. Laranger, 79 N.H. 3, and Steinfield v. Monadnock Mills, 81 N.H. 152, is without merit. The scope of the written contract, how much of their undertaking they included therein, presents the question of whether or not they intended the writing to be a complete memorial of all their agreements upon the subject. Piper v. Meredith, supra. In the case at bar this question is susceptible of but one answer. The writing itself stipulates in specific terms that it embodies the complete agreement.
It follows that the plaintiff's evidence was inadmissible and that the defendant's motions should have been granted.
Judgment for the defendant.
PAGE, J., was absent: the others concurred.