Carlin & Co v. Fraser

• Decision Date: 22 March 1906
• Citation: 105 Va. 216,53 S.E. 145
• Court: Virginia Supreme Court
• Parties: CARLIN & CO. v. FRASER.

53 S.E. 145

(105 Va. 216)

CARLIN & CO.

v.FRASER.

Supreme Court of Appeals of Virginia.

March 22, 1906.

1. Evidence — Whiting—Prior Parol Agreements—Admissibility.

Evidence of a prior parol agreement is not admissible to vary the terms of a valid written contract, in the absence of fraud or mistake.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2030-2047.]

2. Trial—Fraud—Pleading—Instruction.

Where fraud is not pleaded, it is error to give an instruction thereon.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 587, 589.]

3. Same—Instruction.

It is misleading to give an instruction based on inadmissible evidence.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 596, 598.]

4. Same—Measure of Recovery—Set-Off.

In an action wherein defendants pleaded a set-off to plaintiff's claim, instructions as to the amount plaintiff would be entitled to recover on his claim should conclude with directions to set off the amount found due on the set-off against the amount found for plaintiff and to render verdict for the party found entitled to the balance.

Error to Circuit Court, York County.

Assumpsit by Charles Fraser against Carl-in & Co. Judgment for plaintiff, and defendants bring error. Reversed.

Brooke & Elliott, for plaintiffs in error.

S. Gordon Cumming, B. A. Lewis, and Wm. C. L. Taliaferro, for defendant in error.

HARRISON, J. On the 21st day of February, 1899, a contract in writing was entered into between Charles Fraser, of the first part, and Carlin & Co., of the second part, for the sale of certain piles. So far as necessary to be here referred to, this contract provided as follows:

"The party of the first part hereby agrees to furnish and deliver to the parties of the second part, at such point or points along the water front of the U. S. Naval Academy, at Annapolis, Md., all the piles required as set forth on the drawings and described in the specifications of Ernest Flagg, architect, for the building of a sea wall and buildings at said Naval Academy, subject to the Inspection and approval of the said architect or his representative, and of the engineer in charge of the work appointed by the U. S. Navy Department * * * And the parties of the second part hereby agree to pay to the party of the first part for said piles, delivered at said Naval Academy, after approval by said architect or his representative and said engineer in charge, at the prices set forth in the attached schedule, which forms a part of this agreement. *** And it is further agreed that in the event of the party of the first part failing, neglecting, or refusing to furnish and deliver said piles at such time and in such quantities and lengths as the said parties of the second part shall order and direct or to furnish and deliver such piles as will comply with the conditions of inspection and approval as herein described, then the parties of the second part shall be at liberty to enter into agreement with other parties for the furnishing and delivering of said piles, and the party of the first part agrees to reimburse the parties of the second part for any additional cost or expense incurred by them by reason of such default or neglect by the party of the first part."

The specifications with which the piles to be furnished were to comply provided as follows: "The piles shall be of white oak, Georgia yellow pine, spruce, hemlock, or Norway pine, straight, true, sound, and fine straight grained, each to be the number of feet in length that the conditions may require."

In pursuance of this contract the first shipment by Fraser was three rafts of piles, at the aggregate price of $3,049.36. The fact is established by the record that these piles were rejected by the constituted authorities of the government as not complying with the specifications. After these piles were rejected, no further effort was made to comply with the contract In question, and the defendants made other arrangements for securing the necessary piles. Subsequently Carlin & Co. used some of the rejected piles in doing certain preliminary work necessary for executing their contract with the government, and paid Fraser for those so used the sum of $670, which was duly credited.

This action of assumpsit was brought by Charles Fraser to recover of Carlin & Co. the sum of $6,923.95 due by open account consisting of several items, the first and largest Item being $2,379.96 the balance claimed to be due on the three rafts of piles mentioned, which were rejected by the government, after crediting the $670 paid to Fraser by Carlin & Co. for those piles used by them in their preliminary work. The account sued on is alleged in the declaration to be for damages sustained by the plaintiff in consequence of the failure of the defendants to keep and perform the contract already adverted to.

To this action the defendants, Carlin & Co., plead non assumpsit, and filed in addition a special plea of set-off, in which they set forth the contract which forms the basis of the plaintiff's action, and aver that the plaintiff had neglected, failed and refused to deliver, as agreed upon, the necessary piles for the government work, and that in pursuance of the terms of the contract they had bought the piles at the most reasonable prices obtainable in order to carry out their contract with the government; that by reason of the failure of the plaintiff to keep his contract and the necessity thus Imposed upon them of buying the piles elsewhere, they had sustained a loss of $29,702.42, which they asked to be allowed to set off against the plaintiff's demand.

Upon the issue thus joined, the jury ren-dered a verdict in favor of the plaintiff for $6,911.20, which the lower court refused to set aside, giving judgment in accordance therewith; and thereupon this writ of error was awarded.

The first five bills of exception were taken to the action of the court in admitting certain evidence on behalf of the plaintiff over the protest of the defendants. All of the evidence objected to and covered by these exceptions tended to vary and contradict the written contract between the parties, and was plainly inadmissible. The contract clearly and expressly provided that all piles furnished were to be according to specifications and subject to the inspection and approval of the government representative. These provisions were manifestly the most important in the contract to the defendants, because the piles purchased were for the purpose of building a sea wall for the United States government, as stated in the contract, and unless those furnished were accepted by the government, they were valueless to the defendants. Notwithstanding these plain and important provisions of the contract, the plaintiff was permitted to introduce evidence tending to destroy these terms by...