Opinion
September 11, 1941 —
October 7, 1941.
APPEAL from a judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit Judge. Affirmed.
Francis E. McGovern of Milwaukee, for the appellant.
For the respondent there was a brief by Harry V. Meissner, and oral argument by Mr. Meissner and Mr. Robert L. Piper, both of Milwaukee.
Action begun September 12, 1940, by J.M. Tees against Royal Lee to recover a balance alleged to be due under a contract. From a judgment in favor of plaintiff, defendant appeals.
A contract was entered into on March 3, 1937. It provided plaintiff was to have exclusive sales rights to certain vitamin products manufactured by defendant. On that same day a supplemental agreement was entered into whereby the details of bookkeeping were set out. They were simply that as orders and money came in to defendant he should debit plaintiff with the cost price of forty-five cents per unit and credit him with the selling price of sixty cents per unit. There were credit sales under the agreement but the money here involved came in from cash sales.
By a written contract of April 13, 1939, in which plaintiff sold his distributing business to defendant the parties agreed to terminate the 1937 contract "and all further relations thereunder." This second contract was involved in the case of Tees v. Lee, 234 Wis. 607, 291 N.W. 792. At all times from March 3, 1937, until April 13, 1939, the books of account of defendant showed a credit balance in plaintiff's favor. The time of payment of the balance due April 13, 1939, was extended by a contemporaneous oral agreement until October 1, 1939. On April 15, 1939, defendant delivered to plaintiff a written statement of account showing that the amount due plaintiff was $1,058.15. That balance is here sued for.
Plaintiff admits that by the 1939 contract he sold defendant his distributing business and terminated the 1937 contract, but contends the balance due him under the 1937 contract should be paid.
Defendant argues that since the 1939 contract terminated the 1937 contract "and all further relations thereunder" he need not pay the amount already earned and due.
The only question involved in this case is whether an April 13, 1939, contract ended appellant's duty to pay respondent the balance due under a March 3, 1937, contract. Appellant admits by his statement of account of April 15, 1939, that the sum here sued for was then due. Yet his defense now is that all rights, including the credit balance due in favor of respondent, were terminated by the second contract. That contention cannot be sustained.
The oral agreement made on April 13, 1939, to extend the time of payment of the money here involved was properly allowed to be proved by the trial court because that oral agreement does not alter, vary, or contradict the terms of a written contract and therefore does not fall under the parol-evidence rule. 20 Am. Jur. p. 963, § 1099; 3 Jones, Commentaries on Evidence (2d ed.), p. 2699, § 1484. By this parol agreement to extend the time of payment of the debt in question the parties showed clearly it was not their intention to cancel the balance due on the 1937 contract.
It is true that the balance due under the 1937 contract could have been disposed of in the 1939 contract, but the terms of the latter show that was not done. Outstanding sales contracts and credit accounts are dealt with in the contract of April 13, 1939, but no mention is made of the accrued balance due respondent as the result of completed cash sales. Use of the words "terminate the same ( i.e., the 1937 contract) and all further relations thereunder" shows that future relations under the contract were intended to be at an end. Obligations then existing were excluded from the second or 1939 contract.
It is elementary that where a contractual obligation has arisen, and it is not discharged in some manner, it continues to exist. There having been no payment of respondent's credit balance, it is still due and owing, and we agree with respondent that the lower court's decision is supported by the evidence and should be affirmed.
By the Court. — Judgment affirmed.