Bissell Motor Co. v. Johnson

• Decision Date: 17 May 1923
• Docket Number: 6 Div. 864.
• Citation: 97 So. 49,210 Ala. 38
• Parties: BISSELL MOTOR CO. v. JOHNSON.
• Court: Alabama Supreme Court

97 So. 49

210 Ala. 38

BISSELL MOTOR CO. v. JOHNSON.

6 Div. 864.

Supreme Court of Alabama

May 17, 1923

Rehearing Denied June 14, 1923.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by William F. Johnson against the Bissell Motor Company for damages for breach of a contract. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Lange &amp Simpson and W. H. Brantley, Jr., all of Birmingham, for appellant.

David J. Davis, of Birmingham, for appellee.

SAYRE J.

William F. Johnson sued the Bissell Motor Company, alleging the breach of a contract by which defendant agreed to sell for plaintiff an automobile at the price of $600. Plaintiff introduced in evidence a paper writing which witnessed an order by defendant's sales agent on defendant for the immediate delivery of an automobile at the price of $600. One expression of the order was that defendant "will not be bound by any agreement or promise not herein stated." The price was paid and defendant delivered the automobile. The order was signed by R. K. Kay, sales agent for defendant and across its face was written, "I agree to sell car within 90 days if decide to sell car," and this constituted the contract alleged to have been breached.

It was competent probably to explain by parol that the contract was entered into by Kay as agent for defendant and that defendant, by accepting the order, undertook to resell the automobile according to the terms of the contract written across its face. 2 Williston on Contracts, p. 1230; Hughes v. Wilkinson, 35 Ala. 462. But the court over defendant's objection allowed plaintiff to show that the agreement was that defendant was to resell the automobile for plaintiff at the price of $600, thus very materially affecting the amount of recoverable damages in the event the jury found with plaintiff, and it seems very clear that the jury by its verdict fastened upon defendant, not only the contract as it was written, but the alleged stipulation as to the price as well. In this the court went counter to the authorities which hold that, while a contract may be explained consistently with its terms, oral evidence of a term not shown by the writing is not admissible in actions ex contractu, where no fraud is charged, because its effect is to vary the terms of the written instrument by superadding another term or condition not expressed by the parties. Bush v. Bradford, 15 Ala. 317; Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; Griel v. Lomax, 86 Ala. 137, 5 So. 325. The practical effect of the much discussed parol evidence rule is that, when the court sees that a separate collateral agreement was probably intended by the parties, evidence of it is admitted. 2 Williston on Contracts, §§ 631-638. Prof. Williston quotes the following from Fuller, C.J., in Seitz v. Brewers' Refrigerator Co., 141 U.S. 510, 12 S.Ct. 46, 35 L.Ed. 837, as being a good expression of the principle:

"Undoubtedly the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its

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