Dr. Shoop Family Med. Co v. J. A. Mizell & Co

• Citation: 62 S.E. 511,148 N.C. 384
• Court: United States State Supreme Court of North Carolina
• Decision Date: 07 October 1908
• Parties: DR. SHOOP FAMILY MEDICINE CO. v. J. A. MIZELL & CO.

62 S.E. 511

148 N.C. 384

DR. SHOOP FAMILY MEDICINE CO.

v.J. A. MIZELL & CO.

Supreme Court of North Carolina.

Oct. 7, 1908.

1. Evidence—Oral Evidence— Admissibility to Affect Writing.

In an action to recover the price of goods sold under a written contract stating that the order was not subject to countermand and that there was no agreement affecting the order except that specified in the contract, the buyer could not show that when the contract was made the seller's agent stated that the goods could be returned if not resold within 90 days, though the buyer did not read the contract; there being no claim that he was prevented from reading it by the agent's wrongful act.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2035, 2036.]

2. Principal and Agent—Agent's Contract —Authority to Make—Burden of Proof.

If a buyer of goods under a written contract could show, in an action against him for the price of the goods, that the seller's agent orally agreed when the order was given that the goods could be returned if not resold within 90 days, the burden was on him to show that the agent had authority to make such agreement.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 392.]

Appeal from Superior Court, Martin County; Lyon, Judge.

Action by the Dr. Shoop Family Medicine Company against J. A. Mizell & Co. From a judgment for defendant, plaintiff appeals New trial ordered.

This action was brought to recover the price of goods sold and delivered to the defendant under a written contract containing the following stipulation: "This order is not subject to countermand, and we will re-ceive said goods promptly on arrival at the station named above. Failure to do so will make this order due on demand. There is no agreement, verbal or otherwise, affecting the terms of this order, other than is specified herein." The court, over the plaintiff's objection, permitted the defendant to testify that at the time he signed the written contract or order the agent who sold the goods said he would ship them, and the defendant could keep them for 90 days, and if at the expiration of that time they were unsold, he could ship them back to the plaintiff. The court charged the jury that if the verbal agreement was made by the agent with the defendant, and the latter made a reasonable effort to sell the goods, and, not being able to do so, he returned them to the plaintiff at the expiration of the 90 days, they should answer the issue as to the indebtedness in favor of the defendant. The plaintiff excepted to the ruling upon the evidence, and also to the charge. There was a verdict for the defendant, and a motion for a new trial by the plaintiff, which being overruled, and judgment entered for the defendant, the plaintiff appealed.

B. A. Critcher, for appellant.

S. A. Newell, for appellee.

WALKER, J. The evidence as to the parol agreement at the time the written contract was executed was incompetent. It contradicted the plain terms of the written instrument, and it is not permissible to do this, even where there is a contemporaneous oral stipulation which was not reduced to writing, although intended to be a part of the contract. The oral must not conflict with the written part of the contract. The subject is fully discussed by us at this term in Basnight v. Jobbing Co., 62 S. E. 420, where the authorities will be found. See,...