Columbia Milling Company v. Russell Company

• Citation: 42 So. 233,89 Miss. 437
• Court: United States State Supreme Court of Mississippi
• Decision Date: 26 November 1906
• Parties: COLUMBIA MILLING COMPANY v. RUSSELL COMPANY

42 So. 233

89 Miss. 437

COLUMBIA MILLING COMPANY v. RUSSELL COMPANY

Supreme Court of Mississippi

November 26, 1906

November 1906

From the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

The Columbia Star Milling Company, a corporation, the appellant was plaintiff in the court below; the Russell Company, a corporation, the appellee, was defendant there. From a judgment which, although in favor of plaintiff, was for less than it demanded, being for a sum tendered by defendant as the limit of its liability, the plaintiff appealed to the supreme court.

The appellee, the Russell Company, being in the mercantile business at Vicksburg, purchased from appellant a car load of flour under a written contract which was signed by both parties, appellant being represented by its traveling representative, one Brand. The contract was as follows:

"April 10, 1905. Columbia Star Milling Co.: Ship to Russell Co., at Vicksburg, Miss. over M. & O. R. R., at once, terms open, 50 bbls., 50 half bbls., 600 scks., 'Elect' flour, basis $ 5.85, delivered Vicksburg."

The word "Elect" referred to the brand of flour. The appellee some months previously had purchased a consignment of this flour from the above mentioned representative, and had experienced difficulty in selling it because of its being a new and unknown quality to the local market. As a result appellee did not enter into the contract until induced by the oral promises of the representative, Brand, that appellant would advertise the flour in the newspapers published in Vicksburg, and would send two experienced salesmen there to make a house to house canvass and solicit sales, and thus introduce the flour. These promises were made prior to the execution of the written contract of sale. The flour was shipped as ordered, and on its arrival was accepted by appellee. Appellant failed to advertise the flour or to send the special salesmen to canvass the city and solicit sales. Appellee, declining to pay the contract price, $ 891.37, and alleging that it had suffered a loss of $ 120 because of appellant's failure to comply with the verbal promises of its representative, tendered to appellant $ 771.37, the amount of appellant's demand less said damages. Appellant refused to accept the tender and sued for the full contract price. On the trial it was agreed that $ 120 was the amount of appellee's loss, to be deducted from the contract price, if appellee should be adjudged entitled to any deduction at all. Over the objection of appellant the appellee was allowed to offer evidence of the verbal promises made by appellant's representative, Brand. To meet this and in explanation of the appellant's failure to comply with the promises made by its representative before the making of the written contract, Brand testified that the omission resulted from the illness of one of the special salesmen of his company, and that on learning such illness he had informed appellee of the inability of the salesmen to be in Vicksburg, and subsequently, some months after appellee had accepted the flour, he informed appellee that if there was possibility of his losing money under the contract appellant would take back the flour, but appellee made no reply. No explanation was made of appellant's failure to advertise the flour. After the appellant closed its case the appellee moved the court below to exclude the evidence introduced by appellant and to render judgment against appellee for only the tendered sum of $ 771.37. The court sustained this motion and rendered judgment accordingly. On appeal the appellant assigned as error the action of the court below in admitting parol proof to vary the terms of the written contract.

Judgment reversed and cause remanded.

Brunini & Hirsch, for appellant.

The court below refused to apply in this case the academic rule of law to the effect that parol evidence is inadmissible to vary, contradict or qualify a written contract. The facts show that the Columbia Star Milling Company, the appellant, in November, 1904, sold a car load of flour to the appellee, the Russell Company; and in April, 1905, the appellant sold a second car load of the same brand of flour to the appellee. It is not denied that the appellee had to be importuned earnestly and strenuously before it could be induced to purchase the second car load of flour, and that as an inducement appellant's representative orally promised to advertise the flour in the Vicksburg papers. But subsequently the appellant and the appellee evidenced the contract by writing, and such oral argeement constituted no part of the written contract. Sickness of one of the special salesmen who were to make the house to house canvass prevented a compliance by appellent with its oral promise. The appellee claims that by reason of appellant's failure to carry out this oral agreement it sustained a loss of $ 120, and it is agreed that if this court affirms the decision of the court below that appellee will be entitled to the credit of $ 120 and appellant be entitled to the contract price less this sum. In other words $ 120 is the total sum in dispute.

We contend that appellee was not entitled to this deduction of $ 120 because the loss had no foundation in the written contract, which was complete upon its face. The evidence in support of the loss of $ 120 was objected to by appellant when introduced, and the point was further preserved by the motion of appellant to exclude the same.

It is contended by counsel for appellee, the Russell Company, that the oral agreement in regard to the advertising in the newspapers and the house to house canvass by special salesmen of appellant, was admissible in evidence, because the failure on the part of appellant to fulfill its promise in this regard was a fraud upon appellee. And to sustain this contention counsel for appellee seem to rely solely upon the case of Howie v Platt, 83 Miss. 15 (S.C., 35 So. 216).

We do not think that this case is in point, for there is nothing therein to change the general rule announced in Cocke v. Blackburn, 58 Miss. 537, citing Wren v. Hoffman, 41 Miss. 616, to the effect that where parties embody their mutual agreements in a formal written instrument, it must be taken as containing all the evidence of which they desired to preserve, and in the absence of fraud or mistake, it is not competent to add to or take from it by parol evidence. To the same effect is Bond v. Lynn, 72 Miss. 932 (S.C., 18 So. 428); 30 L. R. A., 441.

As regards the charge that there was fraud on the part of appellant our answer is that the facts do not sustain this. It is shown by the testimony of the representative, Brand, who made the oral promises and who also signed the written contract for appellant, that it was solely because of the sickness of one of the special salesmen that this part of the contract was not complied with. And althought the appellant failed to advertise, it is not shown that such failure resulted from any fraudulent motives. But aside from the facts, as a legal proposition we submit that false representations to constitute a fraud, must relate to some past or existing fact material in its nature.

It has frequently been held that a charge of fraud cannot be predicated upon a mere promise, nor upon a mere statement of intention which does not amount to a binding promise, either for the purpose of maintaining an action of deceit or for the purpose of avoiding the contract. 14 Am. & Eng. Ency. of Law, 47.

It may be added that the term "fraud" in our brief should be understood in its legitimate narrow sense, i. e., a misrepresentation of a present or past fact; for although a much looser significance has been occasionally intimated, it is obvious...