Allen-Parker Co. v. Lollis

• Decision Date: 13 December 1971
• Docket Number: ALLEN-PARKER,No. 19331,19331
• Citation: 257 S.C. 266,185 S.E.2d 739
• Court: South Carolina Supreme Court
• Parties: COMPANY, Appellant, v. Corine H. Ashley LOLLIS and One (1) Armor Mobile Home, 50 10, Serial NumberFDAEXMG827, Respondents.

Page 739

185 S.E.2d 739

257 S.C. 266

ALLEN-PARKER COMPANY, Appellant, v. Corine H. Ashley LOLLIS and One (1) Armor Mobile Home, 50

10, Serial NumberFDAEXMG827, Respondents.

No. 19331.

Supreme Court of South Carolina.

Dec. 13, 1971.

Harold R. Lowery, of Chapman & Lowery, Anderson, and W. Richard James, Greenville, for appellant. Michael D. Glenn, of Fant, Doyle, Glenn & Vaughan, Anderson, for respondents.

MOSS, Chief Justice.

This action in claim and delivery was instituted by Allen-Parker Company, the appellant herein, against Corine H. Ashley Lollis, the respondent herein, to recover the possession of one Armor Mobile Home because of the alleged default by the respondent in the payment due under a contract of conditional sale.

In the complaint, the appellant alleges that on January 10, 1966, the respondent executed a contract of conditional sale evidencing the sale to her of the aforesaid mobile home by Exhibit Mart, Inc., as seller. It was alleged that the sales price was $5,301.50 with a down payment of $295.00, leaving an unpaid balance of $5,006.50 which the respondent agreed to pay in forty-five monthly installments to $68.50 each and a final installment of $1,924.00 to be paid on December 20, 1969. It was further alleged that on January 10, 1966, the Exhibit Mart, Inc. assigned, with recourse, the aforesaid contract of conditional sale to the appellant. It is then alleged that the respondent made the payments set forth in said contract through October 20, 1969, but defaulted in and refused to pay the installment of $1,924.00 due on December 20, 1969. The appellant alleged in the complaint default, demand and refusal of delivery of the property, the amount due, and prayed for immediate possession of the Armor Mobile Home.

The respondent, by her answer and counterclaim, set forth (1) a general denial; (2) a defense of fraud alleging that the seller, Exhibit Mart, Inc., represented to her that she could assume the contract of one Charles M. Hall, a previous purchaser of the said Armor Mobile Home, and that there was an outstanding balance owed by the said Hall of $3,100.00. In this defense she further alleged that she was required to pay $200.00 for the equity of the said Charles M. Hall. She further alleges that the contract evidencing her purchase of said mobile home was executed in blank and the said seller was unauthorized to insert a total purchase price of $5,301.50 instead of the agreed price of $3,100.00. It is then alleged that the said Charles M. Hall had never owned the mobile home and these facts were misrepresented to her by the seller; (3) that the contract provided for 8% Interest after maturity and this constituted usury; and (4) that she had completely performed the contract and owes the appellant nothing thereunder and was entitled to an order of the court directing the appellant to deliver a certificate of title to her for the mobile home which she purchased or, in the alternative, that she be reimbursed for the amount she had paid upon said contract.

This case came on for trial before the Honorable Frank Eppes, presiding judge, and a jury, at the 1971 January Term of the Court of Common Pleas for Anderson County and resulted in a verdict for the respondent. The appellant prosecutes this appeal from such judgment, alleging various errors on the part of the trial judge.

The respondent testified that she purchased the mobile home from Exhibit Mart, Inc. and that Jimmy Scribner, the salesman, fixed the purchase price at $3,100.00, representing to her that such mobile home had been previously purchased by one Charles M. Hall. She testified that the salesman told her that Hall was three payments behind on the mobile home and that if she would catch up those payments he would let her have the trailer for the balance due, in the amount of $3,100.00. She was told by Scribner that the payments were $68.50 per month. She testified that she paid these three payments totaling $205.00 and also made an extra month's payment of $68.50 plus $25.00 to transfer the Hall papers over to her. She further testified that she signed an unfilled out or blank contract and that Scribner told her he would fill it out later incorporating therein their agreement. She further testified that she did not know she was signing a contract for the payment of $5,000.00 and would not have purchased the mobile home at such price. The appellant objected to the foregoing testimony on the ground that such violated the parol evidence rule because a subsequent written agreement was entered into by the parties and such merged all prior conversations about the subject of the agreement. The trial judge overruled the objection and error is alleged.

The general rule is that all conversations and parol agreements between the parties prior to or contemporaneous with the written agreement are considered to have been merged therein so that they cannot be given in evidence for the purpose of changing the contract of showing an intention or understanding different from that expressed in the written agreement. Charleston & W. C. Ry. Co. v. Joyce, 231 S.C. 493, 99 S.E.2d 187. However, it is just as well established that if the writing was procured by words and with a fraudulent intent of the party claiming under it, then parol evidence is competent to prove the facts which constitute the fraud. Parham-Thomas-McSwain, Inc. v. Atl. L. Ins. Co., 111 S.C. 37, 96 S.E. 697. It appears from the record here that the respondent by her answer and counterclaim alleged fraud on the part of the salesman of Exhibit Mart, Inc. This being true, she had the right to offer testimony to prove the fraud alleged even though such testimony sought to be introduced tended to vary the terms of the written instrument when it is alleged that such instrument was procured as a result of the fraud charged. When fraud is charged, much latitude is allowed in the admission of evidence on that issue. Continental Jewelry Co. v. Kerhulas, 136 S.C. 496, 134 S.E. 505.

The appellant asserts that the respondent signed an agreement stating that the contract contained all of the provisions agreed upon and was completely filled out prior to the execution thereof. It has been held that the falsity of a misrepresentation is not 'tolled' by a formal expression to the contrary. Even specific provisions or stipulations in a contract providing in effect for immunity from or nullification or waiver of preliminary or extraneous misrepresentations in connection with the contract are generally ineffective, and do not prevent a subsequent assertion of the misrepresentations as a basis for fraud. 37 Am.Jur.2d, Fraud and Deceit, Section 387, P. 524 and 17 Am.Jur. 2, Contracts, Section 191, P. 558.

We conclude that there was no error on the part of the trial judge in admitting evidence tending to show fraud on the part of the appellant in the inducement of or preliminary negotiations to the written contract.

The exceptions of the appellant raise the question of whether it was a holder in due course of the contract upon which this action was brought. These exceptions were not argued in the appellant's brief and we consider such to be abandoned. Shea v. Glens Falls Indemnity Co., 228 S.C. 173, 89 S.E.2d 221.

The appellant alleges error on the part of the trial judge in failing to grant its motion to strike the allegations of fraud on the ground that there was no evidence sufficient to require the submission of this issue to the jury.

We have heretofore recited the testimony of the respondent with reference to the purchase of the mobile home from Exhibit Mart, Inc. The purchase price, according to her testimony, was $3,100.00 payable in forty-five installments at $68.50 each. On the date of the purchase the respondent paid $205.00 plus one additional payment of $68.50 and was given a receipt reading 'paid equity of $205.00 plus $68.50 one payment.' A statement signed by the salesman for Exhibit Mart, Inc. recites that the respondent 'hereby receives all equity paid in by previous purchaser on Armor Mobile Home Ser.: 827 Fifty by ten wide 1964 model . . . and does hereby assume balance of contract with payments of $68.50 monthly for the balance of Charles M. Hall contract and extention thereof.'

The respondent called Charles M. Hall as a witness. He testified that in 1965 or 1966 he purchased a mobile home from Jimmy Scribner. He stated that such had not been repossessed and that he was still living in the mobile home. This witness was cross-examined and asked as to whether he was Charles M. Hall, Jr. and lived in Ware Shoals, South Carolina. He stated that he was the only Charles M. Hall that he knew of. Apparently, there was exhibited to him a contract signed by Charles M. Hall, Jr., but he stated that the signature thereon was not his. At no time during the trial did the appellant offer any Charles M. Hall contract as evidence and the statement signed by Exhibit Mart, Inc. recites only a 'Charles M. Hall contract' and does not refer to Charles M. Hall, Jr.

Viewing the testimony in this case, in the light most favorable to the respondent, we cannot say that only one inference can be drawn therefrom. Since more than one reasonable inference may be drawn from the evidence, the question of fraud was for the jury. Cook v. Metropolitan Life Ins. Co., 186 S.C. 77, 194 S.E. 636.

The appellant contends the trial judge was in error in refusing to hold as a matter of law that the respondent was negligent in signing a blank contract and, as a result thereof, in failing to strike the defense of fraud.

In Parks v. Morris Homes Corp., 245 S.C. 461, 141 S.E.2d 129, we said:

'The duty on the part of the defrauded party to...