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eBook details

• Title: Ikovich v. Silver Bow Motor Co.
• Author : Supreme Court of Montana
• Release Date : January 10, 1945
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 69 KB

Description

1. Sales ? Evidence held inadmissible under pleadings. The conditional buyers testimony that when he signed contract it was simply a printed form, that no one signed for the seller, that the sellers agent told buyer that the agent would fill in the contract that the buyer could not read English, that the representative of the seller stated that the instrument was no good, and that a new one would be made but that was never done, was inadmissible as not within issues raised by the pleadings. 2. Evidence ? Oral evidence not to vary terms of contract. Where the copy of the conditional sale contract retained by the seller of the automobile was properly signed by both parties and the copy delivered to buyer was not signed by the seller, but the parties treated the contract as binding, the contract was subject to the rule that those who acquiesce in it will not be permitted to vary its terms by oral evidence. 3. Evidence ? Testimony as to warranties inadmissible. The buyers testimony that the sellers agent represented that the automobile had not been wrecked, that the motor had not been burned, and that if anything was wrong with the automobile the seller would make it good, was inadmissible, where the written contract recited that the automobile was delivered without warranty except as to title, there being no issue of fraud, misrepresentation or breach of warranty raised by the pleadings. - Page 269 4. Evidence ? Contract considered to contain all the terms. Generally, in the absence of fraud or mistake, where the terms of the contract have been reduced to writing by the parties it must be considered as containing all the terms of the agreement and parol evidence cannot be resorted to, to alter the written contract and usually plaintiffs inability to read does not alter the rule. 5. Contracts ? Inability to read. A person unable to read is bound by contracts which he signs and which are otherwise valid and enforceable. 6. Contracts ? "Executed oral agreement" must be performed on both sides. An oral agreement altering a written agreement is not an "executed oral agreement", within statute authorizing modification of a written contract by an executed oral agreement unless its terms have been fully performed, and performance on one side is not sufficient. 7. Evidence ? Subsequent oral agreement inadmissible ? Waiver and estoppel not applicable. Where the sales contract required the buyer to keep the automobile in good repair at his own expense, the buyers testimony regarding subsequent oral agreement of the seller to credit the buyers repair bill as payment under the contract was inadmissible in absence of evidence showing an act of seller in recognition thereof and the doctrine of estoppel or waiver did not preclude application of statute allowing alteration by an "executed oral agreement." 8. Contracts ? Statute of frauds ? Contract within. At common law, contracts not within the statute of frauds may be altered by a new agreement in parol. Statutory restrictions against modification of a written contract by parol must be complied with to have a valid modification and a written agreement, as here, involving a price in excess of $200 and running for more than a year, comes within the statute of frauds and may not be modified by parol agreement. 9. Sales ? Evidence insufficient to show conversion. Where, on the conditional buyers default, the seller took the automobile, which was parked on a vacant lot behind the buyers house with the front wheels in the alley, without the buyers previous knowledge or consent except as that consent was given in the conditional sales contract, the seller had a right to re-enter into possession and was not guilty of conversion.

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