The opinion
Sam Robinson, Associate Justice (dissenting). According to any reasonable construction of the complaint in this case it alleges that the plaintiff and defendant entered into an oral contract whereby, for a stipulated amount, the appellee employed appellant to saw into lumber all of the logs from 800 acres of timberland. The complaint further alleges that at a later date the oral agreement was reduced to a written contract; that appellant performed part of the contract and had stood ready, willing and able to complete his part of the contract if he had been permitted to do so by appellee, but that appellee had breached his part of the contract by failing to furnish the logs to be sawed into lumber.
The majority is holding that the writing does not constitute a contract, but that appellee is bound by the terms of this unenforceable agreement and can not introduce parol testimony to add to the writing to show that the parties actually did enter into a valid contract. In my opinion, the majority has improperly applied the parol evidence rule. Before this rule is applicable, there must be a valid written contract between the parties. The majority holds, and I agree, that there is no such contract.
In 20 Am. Jur. 954 it is said: “The rule, commonly known as the ‘parol evidence rule,’ which excludes evidence of prior or contemporaneous oral agreements which would vary a written contract presupposes the existence of an existing valid written contract. Speaking generally, if the parol evidence attacks the legality ... of the contract, it does not fall within the condemnation of the so-called ‘parol evidence rule’.” (Emphasis ours.) And, on page 955 of the same volume of Am. Jur., it is said: “The rule that parol evidence is inadmissible to contradict or vary a written contract applies only to a written contract which is in force as a binding obligation.”
In 32 C.J.S. 823 it is said: “It is of course necessary to the application of the parol evidence rule to contracts that there shall be a complete written contract between the parties.”
“The trial court assumed that such testimony was incompetent under the rule that parol testimony is not admissible to'vary the terms of a written contract. While this is the law, it does not necessarily apply here, for if appellant’s construction of the transaction is correct, no contract was entered into.” Marshall Motor Service v. Norm Co., 194 Ark. 805 , 109 S. W. 2d 662 . Likewise in the case at bar, if there is no written contract, there is nothing to prohibit proof of an oral contract.
The majority points out that there is no written contract between the parties, and then cites Graves v. Bodcaw Lumber Co., 129 Ark. 354 , 196 S. W. 800 , to the effect that parol evidence is not admissible to vary the terms of a valid and binding written contract. In that case there was a valid written contract; the Court said: “The writing sued on here showed a complete contract. ’ ’
Appellant alleges in the complaint an oral agreement constituting a valid contract. Only recently, in the case of Donham, Commissioner v. Neeley, Law Reporter of November 12, this Court held that an entire complaint is not demurrable if any good cause of action is stated, and that in testing the sufficiency of a pleading against a general demurrer, every reasonable intendment should be indulged to support the pleading.
In my opinion the complaint in this cause states a valid oral contract. The parol evidence rule, which is actually a rule of substantive law because of rights acquired under a written contract, is not applicable because there is no valid written contract. I would, therefore, reverse the judgment.
Johnson, J., joins in this dissent.