O'MEARA v. Pritchett
O'MEARA v. Pritchett
Opinion of the Court
Plaintiff appeals a judgment granting defendant United States National Bank’s (USNB) motion for a directed verdict. We affirm.
The parties do not dispute what happened. Plaintiff and Pritchett
Plaintiff and Pritchett also told the representative that plaintiff would pledge $30,000 against the event that ISM would default on its obligations under the letter of credit. They discussed what would happen to plaintiffs $30,000 if the shipping documents were not presented by November 15. The representative said that, in that event, plaintiff “would keep his $30,000.” The representative also said that the collateral agreement and the letter of credit together would provide that plaintiff’s obligation in the transaction would end on November 15.
Pritchett, as president of ISM, signed the application for the letter of credit. Plaintiff then signed the collateral agreement on USNB’s form, which provides that plaintiff grants USNB a security interest in the collateral to secure “the indebtedness,” defined as
“all obligations, debts and liabilities of [ISM] * * * to [USNB] or any claim by [USNB] against [ISM] * * * heretofore, now or hereafter made, incurred, or created * *
The goods were not shipped by October 31, and the shipping documents were not presented by November 15. ISM and USNB extended the letter of credit to December 15,1984, without plaintiffs knowledge or consent. In January, 1985, plaintiff discovered that Pritchett was attempting to accept late delivery of the goods. When plaintiff asked USNB to release his funds, he learned that ISM had already accepted late delivery and presentation of the shipping documents, had waived discrepancies in the documents and had authorized USNB to pay the seller on the letter of credit. In the meanwhile, plaintiffs certificate of deposit had been automatically renewed. When it again matured and ISM had not paid its debt to USNB, the bank collected the $30,000 deposit, plus interest, for its own account.
Plaintiff brought this action to recover $30,000. At trial, he introduced evidence of the conversations with USNB’s representative and the purported agreement to return his $30,000 after November 15.
ORS 41.740, the Parol Evidence Rule, provides, in pertinent part:
“When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except where a mistake or imperfection of the writing is put in issue by the pleadings or where the validity of the agreement is the fact in dispute. However this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in ORS 42.220, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud. The term ‘agreement’ includes deeds and wills as well as contracts between parties.”
1-4. The only certainties about the meaning of the statute are that it is a substantive rule of law and that it does not mean all that its words would be taken to mean in ordinary usage. Whether it bars admission of an oral agreement made before and extrinsic to a written agreement depends on whether the parties intended that the writing be a complete and full integration of their agreement. Hatley v. Stafford, 284 Or 523, 532, 588 P2d 603 (1978). Determination of that question is a matter for the court, unless the parties have declared their intention in the agreement. Under Oregon’s peculiar application of Restatement of Contracts, § 240,
The foregoing paragraph, which is in substance the same as appears in Greenwade v. Citizens Bank of Oregon, 50 Or App 395, 399, 624 P2d 610 (1981), tends to make Parol Evidence Rule law seem a good deal clearer than it is now or ever has been in Oregon. Hatley v. Stafford, supra, begins with a statement identifying two of the confusing lines of authority, 284 Or at 533, and sets as its goal clarification of the confusion. Unfortunately, the case only achieves that goal if it is read carelessly. When it is read carefully, it is not particularly clear and is by no means as helpful as the frequency of its citation (see cases cited in note 7, infra) would suggest.
5. It is not fair to cast aspersions only on Hatley. Caldwell et ux v. Wells, supra, the case on which much of Hatley rests, apparently accepts § 240 as some sort of paraphrase of the common law Parol Evidence Rule. Hatley picks up that idea and amplifies it. To the extent that this court’s opinions have perpetuated confusion about the meaning and use of § 240,
Despite its hard to follow meandering, the holding in Hatley v. Stafford, supra, as applied here, leads to the conclusion that, if the collateral agreement is a complete integration, the trial court was correct in striking plaintiffs evidence. What none of the cases
Affirmed.
Pritchett, Robert Noble, International Satellite Manufacturers, Inc. (ISM), and International Satellite Sales, Inc. (ISS), were also defendants. This appeal concerns only the claim against USNB.
The parties do not raise the question whether the letter of credit (including the application) and the collateral agreement constitute, together, a single written agreement. They treat the collateral agreement as the only written agreement in issue, and so do we.
USNB points out in its brief that the oral termination agreement was not pleaded by plaintiff and was raised only at the beginning of trial. It suggests that that procedural point is an alternative ground to sustain the trial court. See Booras v. Uyeda, 295 Or 181, 189, 666 P2d 791 (1983). Because plaintiffs case was tried entirely on the late raised theory and was terminated by a directed verdict based on it, we believe it best to decide it on that theory.
Section 240 provides, in relevant part:
“(1) An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, nor a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and
“(a) is made for separate consideration, or
“(b) is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.”
We have even said that § 240 is the Oregon Parol Evidence Rule. First National Bank v. Sybil, 74 Or App 329, 332, 702 P2d 1141, rev den 300 Or 180 (1985).
Restatement (Second) Contracts, § 216, provides:
“(1) Evidence of a consistent additional term is admissible to supplement an integrated agreement unless the court finds that the agreement was completely integrated.
“(2) An agreement is not completely integrated if the writing omits a consistent additional agreed term which is
“(a) agreed to for separate consideration, or
“(b) such a term as in the circumstances might naturally be omitted from the writing.”
Although it is by no means all inclusive, this list (in chronological order) exemplifies the range of decisions (good and bad) purporting to decide Parol Evidence Rule and § 240 issues: Caldwell et ux v. Wells, supra; Deering v. Alexander, 281 Or 607, 576 P2d 8 (1978); Hatley v. Stafford, supra; Stone-Fox, Inc. v. Vandehey Development Co., 46 Or App 465, 611 P2d 1195 (1980), rev’d and rem’d 290 Or 779, 626 P2d 1365 (1981); Percival v. Corey, 48 Or App 511, 617 P2d 310 (1980), rev den 290 Or 302 (1981); Oakridge Cablevision v. First Interstate Bank, 65 Or App 640, 673 P2d 532 (1983); Deerfield Commodities v. Nerco, Inc., 72 Or App 305, 696 P2d 1096, rev den 299 Or 314 (1985); First National Bank v. Sybil, supra n 4; Domingo v. Copeland Lumber Yards, 81 Or App 52, 724 P2d 841 (1986); Howell v. Oregonian Publishing Co., 82 Or App 241, 728 P2d 106 (1986).
Concurring Opinion
specially concurring.
I agree with the result in this case. I disagree, however, with the majority’s statement that the question whether a writing is integrated is decided as a factual matter by the trial judge and that we cannot review that decision except to decide whether it is supported by substantial evidence.
Whether a writing is integrated is a legal conclusion. As such, a ruling on whether an agreement is integrated is reviewable on appeal as a question of law.
The question in this case is whether the oral agreement about when the collateral agreement would terminate is inconsistent with the written agreement. If it is not, it must be decided whether there is separate consideration for the oral agreement or whether, in the light of the circumstances, the oral agreement is one which the parties might naturally agree upon separately.
The fact that the agreement had no termination date is not necessarily inconsistent with the existence of a termination date. Evidence of a termination date does not contradict an express contractual term in this case. However, it is clear that, if the parties had intended the collateral agreement to be other than open-ended as to duration, a term limiting its length would naturally be included in the writing. As such, it
There was no evidence that there was separate consideration for the oral agreement.
Reference
- Full Case Name
- O’MEARA, Appellant, v. PRITCHETT Et Al, Defendants, and UNITED STATES NATIONAL BANK OF OREGON, Respondent
- Cited By
- 7 cases
- Status
- Published