Duffey v. Scientific Am. Compiling Dep't

CourtSupreme Court of Oklahoma
Citation1912 OK 96,120 P. 1088,30 Okla. 742
Docket NumberCase Number: 1420
PartiesDUFFEY v. SCIENTIFIC AMERICAN COMPILING DEPARTMENT.
Decision Date16 January 1912
Syllabus

¶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.

ROSSER, C.

¶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:

"July 17th, 1908.
"Gentlemen: Please ship to me, one complete set of The Americana, in sixteen (16) volumes, bound in three-quarter Morocco, which I agree to accept and for value received, pay you at Chicago, Ill., $ 6.50 per volume. Title and ownership in said books not to pass to me until full amount of contract is paid. This order is unconditional, except as noted hereon. Payable one vol. a month. Check payable to Scientific American compiling department. Received on account . M. V. Power, Representative. Name, J. E. Duffey. Business or profession, . Mailing address, Western Supply Co. Ship books to Tulsa. City, . State, . It is understood by me that 'The Americana' is a general reference work, and that delinquency in six months payments shall cause full amount of contract to become due and payable."

¶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:

"Defendant, further answering plaintiff's bill of particulars, alleges that he did, on or about the 17th day of July, 1908, enter into an agreement in writing with said plaintiff corporation for the sale of a certain set of books consisting of 16 volumes, but that said agreement was a conditional agreement, and that the same was to have no valid binding effect until said corporation plaintiff should correspond with said defendant, and should receive specific instructions from said defendant to ship said books; that said plaintiff never corresponded with said defendant, and wholly disregarding said conditional agreement shipped said books to said defendant without his consent or request. Defendant further alleges that it was expressly agreed by and between said plaintiff and defendant that, in case said defendant should at no time desire to accept said books, then said agreement above mentioned should have no force and effect, but should be null and void; and that this agreement was signed under such express conditions."

¶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:

"Where an obligation is embodied in a single document, the very essence of the obligation is its validity and enforcement. Hence an agreement, alleged to have been a part of the transaction that the obligation should not be used as binding or enforceable can never be permitted to be shown, for the writing necessary determines that very subject to the contrary; in the ordinary phrase, it is necessarily inconsistent with the writing."

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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18 cases
  • Hensley v. State Farm Fire & Cas. Co.
    • United States
    • Oklahoma Supreme Court
    • 20 Junio 2017
    ...can the insured contradict the written instrument's plain terms under the guise of a latent ambiguity.). See also Duffey v. Scientific American Compiling Department, 1912 OK 96, 30 Okla. 742, 120 P. 1088, 1089 (a party may not destroy the written contract under the mask of explaining a late......
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    ...the testimony is inadmissible are as follows: Clinton National Bank v. McKennom, 26 Okla. 835, 110 P. 649; Duffey v. Scientific American Comp. Dept., 30 Okla. 742, 120 P. 1088; Colbert v. First National Bank of Ardmore, 38 Okla. 391, 133 P. 206; Union National Bank v. Lavacota Oil & Gas Co.......
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    ...questions relating to the constitutionality of statutes will not be considered for the first time on appeal. Duffey v. Scientific American Comp. Dept., 30 Okla. 742,120 P. 1088; Fast v. Gilbert, 102 Okla. 245, 229 P. 275; Missouri, K. & T. R. Co. v. Prince, Co. Treas., 133 Okla. 228, 271 P.......
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    ...upon a theory not presented to the trial court, we will not further analyze the contention in this opinion. See Duffey v. Scientific Amer. Comp. Dept., 30 Okla. 742, 120 P. 1088; Black, Strolls & Bryson v. Farrell, 131 Okla. 249, 268 P. 276; Josey Oil Co. v. Board of County Com'rs, 107 Okla......
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