Duffey v. Scientific Am. Compiling Dep't
Court | Supreme Court of Oklahoma |
Citation | 1912 OK 96,120 P. 1088,30 Okla. 742 |
Docket Number | Case Number: 1420 |
Parties | DUFFEY v. SCIENTIFIC AMERICAN COMPILING DEPARTMENT. |
Decision Date | 16 January 1912 |
¶0 1. EVIDENCE--Parol Evidence--Conditions Precedent to Obligation. Where a person gave an order for the purchase of certain books, in which all the terms of the purchase were set out, and which in terms directed that the books be shipped, parol evidence is not admissible to show that a contemporaneous oral agreement was made with the agent of the book company that the order was not to become effective until the person giving the order wrote the publisher specific instructions to ship the books, and that if the person ordering the books at no time desired to accept them the order should have no force and effect.
2. SAME--Parol Evidence--Ambiguous Contract. The fact that the word "future" was written in ink across the face of the order was not such latent ambiguity as would permit the introduction of parol testimony inconsistent with the terms of the order.
3. APPEAL AND ERROR--Theory of Case--Change on Appeal. Where a defendant relies upon a certain defense in the trial court, he will not be permitted to shift his ground of defense on appeal, so as to present another defense, not presented nor relied upon in the trial court.
Error from Tulsa County Court; N. J. Gubser, Judge.
Action by the Scientific American Compiling Department, a corporation, against J. E. Duffey. Judgment for plaintiff, and defendant brings error. Affirmed.
Chas. W. Grimes, for plaintiff in error.
Aby & Tucker, for defendant in error.
¶1 The defendant in error, hereinafter called plaintiff, was the publisher of a set of books, known as "the Americana." The plaintiff in error, hereinafter called defendant, on the 17th day of July, 1908, ordered a set of this work from the plaintiff; the order being in the following form:
¶2 This contract was made upon a printed form, and across the face of it was written, in ink, the word "future." On the 1st of October, 1908, plaintiff tendered the books to the defendant, and he refused to receive them, whereupon the plaintiff sued him for $ 104, the purchase price.
¶3 The defendant answered with a general denial of the contract and of the indebtedness, admitting the tender of the books, and then answered further as follows:
¶4 Defendant at the trial offered himself as a witness, for the purpose of proving the allegations in the answer. The plaintiff objected to his testimony, for the reason that he sought to vary the terms of a written agreement by parol testimony. The court sustained the objection, and, the defendant offering no further evidence, the court, over the objection of the defendant, instructed the jury to find for the plaintiff for the full amount of the purchase price of the books.
¶5 The first assignment of error is upon the action of the court in excluding the testimony of the defendant as to the condition upon which the contract was signed. This action of the court was proper. Mr. Wigmore, in his work on Evidence, at section 2435, states the rule thus:
See Ryan v. Cooke, 172 Ill. 302, 50 N.E. 213; McNinch v. Northwest Thresher Co., 23 Okla. 386, 100 P. 524, 138 Am. St. Rep. 803.
¶6 It is not necessary...
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