Taylor v. More , 195 Minn. 448 ( 1935 )

I find myself unable to agree with the majority's opinion in this case and therefore respectfully dissent.

The sole question presented by this appeal is whether evidence may be introduced to show that the writing in this case was not intended to be the complete contract between the parties or whether the so-called "parol evidence rule" precludes such showing.

This "rule" has been the source of much difficulty and confusion. I believe that the only approach to these cases that will lead to clarity and understanding by the lawyers and the courts is that taken by Dean Wigmore. See 5 Wigmore, Evidence (2 ed.) § 2430. The whole problem is that of the intent of the parties. If the parties have intended a writing to be the only evidence of the contract between them and to cover the entire transaction, any other evidence, whether it be another writing, spoken words, or any other type of evidence, is simply immaterial. If they have not so intended, the contract must be determined by other evidence. The trial court should determine the preliminary question of intent, doing so with the aid of any evidence admissible under the usual rules of evidence. Then, whether the acts or negotiations claimed to have taken place so as to create a contract apart from any writing did take place is a question for the jury to decide.

"There is a preliminary question for the judge to decide as to the intent of the parties, and upon this he hears evidence on both sides; his decision here, pro or con, concerns merely this question preliminary to the ruling of law. If he decides that the transaction was covered by the writing, he does not decide that the excluded negotiations did not take place, but merely that if they did take place they are nevertheless legally immaterial. If he decides that the transaction was not intended to be covered by the writing, he does not decide that the negotiations did take place, but merely that if they did, they are legally effective, and he then leaves to the jury the determination of fact whether they did take place." 5 Wigmore, Evidence, (2 ed.) § 2430.

See also 18 Minn. L.Rev. 570; Danielson v. Bank of Scandinavia, 201 Wis. 392, 230 N.W. 83, 70 A.L.R. 746.

For the foregoing reasons, I believe that the trial court erred (1) in refusing to admit testimony to the effect that the bank stock was worth more than the par value for which it was sold; (2) in refusing to allow appellant to show the relation between the bank stock and the holding company stock; (3) in ordering judgment notwithstanding verdict for defendant-respondent. (1) and (2) would have shown the probability of the existence of the contract as claimed by the plaintiff-appellant. As stated by the trial court in a memorandum made part of the record, the "record is full of error of a prejudicial nature." The cause should be remanded to the lower court for a new trial.