American Potato Co. v. Jenette Bros. Co.

• Decision Date: 13 September 1916
• Docket Number: 9.
• Citation: 89 S.E. 791,172 N.C. 1
• Parties: AMERICAN POTATO CO. v. JENETTE BROS. CO.
• Court: North Carolina Supreme Court

89 S.E. 791

172 N.C. 1

AMERICAN POTATO CO. v. JENETTE BROS. CO.

No. 9.

Supreme Court of North Carolina

September 13, 1916

Appeal from Superior Court, Pasquotank County; Cooke, Judge.

Action by the American Potato Company against the Jenette Bros Company. Judgment for defendant, and plaintiff appeals. Error, and new trial.

Where one party alleges mutual mistake in writing a contract, the real agreement may be shown by oral proof.

Plaintiff sued to recover damages for a breach of contract in the sale of potatoes. It was agreed between the parties that on October 25, 1912, plaintiff would sell and deliver at Elizabeth City, N. C., 1,000 sacks of potatoes, known in the trade as Irish Cobbler, and White Bliss, at $2.90 per sack of 11 pecks, the same to be sacked and shipped between January 1, 1916, and February 28, 1916, in cars of 250 sacks each upon receipt of a written order of shipment from the defendants two weeks before the first-named date, the potatoes "to be the best quality shipped from Aroostook county, state of Maine, by the said first party [plaintiff in this case], and in sacks of 165 pounds each net; the same now being stored in warehouses in Maine, which are owned and operated by the said party." There was a further stipulation as to the price and the payment thereof by stated installments. Defendants alleged and offered proof to show that plaintiff failed to comply with this contract, in that instead of shipping potatoes of the quality described in their agreement, "it had shipped a bad lot of potatoes being anything that grows in potato fields, from the smallest culls to the largest, being mixed and of three different kinds, the smallest being the size of a turtle egg and some as large as a cocoanut." Plaintiff tendered issues based on the terms of the contract, which the court rejected, and submitted issues which, with the answers of the jury thereto are as follows:

"(1) Was the plaintiff ready, willing, and able to deliver to the defendants 580 bags of Cobblers and 180 bags of White Bliss Irish Potatoes, the best quality shipped from Aroostook county in 1913? Answer: No.

(2) Did defendants wrongfully refuse to take the potatoes and pay for same? Answer: No.

(3) What damage, if any, is plaintiff entitled to recover? Answer: Nothing."

The court admitted evidence, over plaintiff's objection, as to the correspondence and dealings between the parties prior to the execution of the written contract of October 25, 1912, and as to the quality of the potatoes defendants had purchased from the plaintiff in 1912, and also oral evidence as to the kind and quality of potatoes the defendants contracted to buy, which were to be good, medium size, smooth, and bright. There was no evidence as to the kind or quality of potatoes which were shipped from Aroostook county, Me., by the plaintiff in 1913, and plaintiff asked for an instruction based upon this lack of evidence, which was refused. Judgment was entered upon the verdict, and plaintiff, having reserved all exceptions taken during the trial, appealed to this court.

Geo. J. Spence and Aydlett & Simpson, all of Elizabeth City, for appellant.

Ehringhaus & Small, of Elizabeth City, for appellee.

WALKER, J. (after stating the facts as above).

The parties had the legal right to make their own contract; and, if it is clearly expressed, it must be enforced as it is written. We have no power to alter the agreement, but are bound to interpret it according to its plain language. There is no rule of evidence better settled than that prior negotiations and treaties are merged in the written contract of the parties, and the law excludes parol testimony offered to contradict, vary, or add to its terms as expressed in the writing. Moffitt v. Maness, 102 N.C. 457, 9 S.E. 399. The principle lies at the very foundation of all contracts and, if permitted to be violated, the ultimate injury to the commercial world and to society generally would be incalculable and certainly far-reaching. It is unfortunate that loose dicta in occasional and ill-considered cases are to be found which seem to be hostile to this safe and sound axiom of the law, because they have strained the law in order to defeat or circumvent some suspected fraud, perhaps gross and vicious, but the method of preventing the consummation of the wrong will be far more disastrous in its results than a steady adherence to the rules of the law, although in special cases actual imposition or fraud may be perpetrated. The rules of law are and must needs be universal in their application, this being essential to certainty in business transactions and to the integrity of contracts; for otherwise "commerce may degenerate into chicanery, and trade become another name for trick." Rearick v. Rearick, 15 Pa. 66. It is true that Cicero in his eloquent defense of the poet Archias, denied the superiority of the record, or the written memorial, over the spoken word, upon the ground that the witness is subjected to an oath and cross-examination, with other safeguards against falsehood, while the record has no such test to assure its accuracy; but his plausible argument has never been accepted by the wiser sages of the law, who have consistently adhered to the safer rule, and so arranged the degrees of proof as to give decided preference to written over unwritten evidence. Chief Justice Taylor, in referring to this view of the law, believed that the fallibility of human memory weakens the effect of oral testimony to such an extent that even the most upright mind, though awfully impressed with the solemnity of an oath, perfectly honest and sincere in its processes, and aiming solely to a disclosure of the truth, may still err, and thereby unconsciously substitute falsehood for it. He said that:

"Time wears away the distinct image and clear impression of facts, and leaves in the mind uncertain opinions, imperfect notions, and vague surmises."

It is better, therefore, to rely upon the written word as less apt to deceive or falsify. Smith v. Williams, 5 N. C. 426, 4 Am. Dec. 564. Nor can this beneficent rule be evaded by substituting the understanding of one party for the agreement of both. The minds of the parties must have met at the same time, and with a common understanding, upon the same subject-matter, and when the agreement is reduced to writing it is conclusively presumed to state that common understanding, and to be their last expression and the chosen memorial of what the contract shall be. We said in Lumber Co. v. Lumber Co., 137 N.C. 436, 49 S.E. 948:

"It is not the understanding, but the agreement of the parties that controls, unless that understanding is, in some way, expressed in the agreement. Even if the defendant had clearly shown that it so understood the agreement, it will not do, as the court proceeds, not upon the understanding of one of the parties, but upon the agreement of both. No principle is better settled." Brunhild v. Freeman, 77 N.C. 128; Pendleton v. Jones, 82 N.C. 249; Prince v. McRae, 84 N.C. 674; McRae v. Railroad, 88 N.C. 534, 43 Am. Rep. 745; King v. Phillips, 94 N.C. 558; Bailey v. Rutjes, 86 N.C. 520.

There is no contention here, and could not be, that any part of the contract rested in parol, for the rule in respect to such cases is thoroughly settled that:

"Where the contract lies partly in parol, that part which is in

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