Colonial Jewelry Co. v. Brown

• Decision Date: 22 April 1913
• Citation: 131 P. 1077,38 Okla. 44,1913 OK 256
• Parties: COLONIAL JEWELRY CO. v. BROWN ET AL.
• Court: Oklahoma Supreme Court

131 P. 1077

38 Okla. 44, 1913 OK 256

COLONIAL JEWELRY CO. v. BROWN ET AL.

Supreme Court of Oklahoma

April 22, 1913

Syllabus by the Court.

Evidence offered for the purpose of showing that a written instrument was delivered conditionally does not constitute contradicting or varying a written instrument by parol. Such evidence does not tend to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced. A written contract must be in force to make it subject to the parol evidence rule.

Error from the County Court of Pontotoc County; Conway O. Barton Judge.

Action by the Colonial Jewelry Company against J. W. Brown and another, doing business under the firm name of Brown & Johnson, etc. Judgment for defendants, and plaintiff brings error. Affirmed.

Thomas P. Holt, of Ada, for plaintiff in error.

I. M King and J. W. Dean, both of Ada, for defendants in error.

KANE J.

This was an action commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below upon a jewelry contract or order. At the commencement of the action, an order of attachment was issued upon an affidavit of the plaintiff, to the effect that the defendants were attempting to dispose of and otherwise conceal their property with intent to hinder and delay plaintiff in collecting its debt, and was otherwise violating the Bulk Sales Law of the state of Oklahoma (Comp. Laws 1909, §§ 7908-7910). The defendants admitted the execution of the contract sued upon but alleged that the same was placed in the hands of the defendants under an agreement, whereby it was not to become effective until five days after its execution, during which time the defendants were at liberty to cancel the order. They further alleged that the goods were shipped before the expiration of the five days, notwithstanding the defendants in the meantime had notified the plaintiff that they did not want the goods described in the order, and requested it to cancel the same. They further alleged that they had in no way violated the Bulk Sales Law of the state of Oklahoma, and that no grounds for attachment existed, and that by reason of the wrongful suing out of the same they had been damaged in the sum of $500. Upon a trial to a jury upon the merits, a verdict was returned for the defendants in the sum of $100 and the dissolution of the attachment, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

Counsel for plaintiff in error presents his grounds for reversal under three heads, as follows: "(1) The trial court erred when it permitted defendants to introduce parol evidence to contradict and vary the terms of a written contract, by which evidence a verbal agreement was shown different from the written, but not incorporated therein, and made prior to and contemporaneous with the written instrument. (2) The trial court erred in giving the instructions that were given. (3) The trial court erred in refusing to...