Alexander v. Brown

HOWE, Justice

(dissenting):

I dissent. It was error for the trial court to exclude from evidence testimony of the real estate salesman who sold the lot to the plaintiffs that in negotiating the sale with Mr. Alexander, it was understood and agreed that the improvements would not be *696 installed by the seller on the side street, but that Mr. Alexander would make those improvements himself. The trial court excluded the proffered testimony on the ground that the earnest money receipt and offer to purchase was an integrated agreement and that allowing the salesman to so testify would violate the parol evidence rule. The defendants’ position was that the earnest money receipt and offer to purchase did not contain the full agreement of the parties.

It was error for the trial court to assume that the earnest money receipt and offer to purchase was an integrated agreement. The law on this point is summarized well in § 209 of Restatement of Contracts 2d:

(1) An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement.

(2) Whether there is an integrated agreement is to be determined by the court as a question preliminary to determination of a question of interpretation or to application of the parol evidence rule.

(3) Where the parties reduce an agreement to a writing which in view of its completeness and specificity reasonably appears to be a complete agreement, it is taken to be an integrated agreement unless it is established by other evidence that the writing did not constitute a final expression.

Comment c. states that whether a writing has been adopted as an integrated agreement is a question of fact to be determined in accordance with all the relevant evidence. Corbin on Contracts, Vol. 3, § 582 is to the same effect, i.e., that extrinsic evidence may always be admitted to prove that a writing was not assented to as a complete and accurate integration of the agreement of the parties.

The majority opinion in affirming the lower court’s refusal relies upon Farr v. Wasatch Chemical Co., 105 Utah 272 , 143 P.2d 281 (1943). Actually, the language which the majority opinion quotes from that case are the words of Professor Wig-more as contained in § 2430 of his work on Evidence. Wigmore does not state that extrinsic evidence may not be admitted to disprove that a writing is an integration. On the contrary, Wigmore’s statement is fully consistent with § 209 of the Restatement of Contracts 2d, supra. In the last sentence of the quote from Wigmore in the majority opinion, he states, “If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element; ...” The word “presumably” was used advisedly. It allows for extrinsic evidence to be admitted to prove to the contrary. Wigmore is clear and definite on this point and does not support the position taken in the majority opinion.