Ehlinger v. Washburn-Wilson Seed Co., 5664

• Court: United States State Supreme Court of Idaho
• Writing for the Court: BUDGE, J.
• Citation: 51 Idaho 17,1 P.2d 188
• Parties: JOHN J. EHLINGER, Doing Business Under the Name and Style of JOHN J. EHLINGER COMPANY, Respondent, v. WASHBURN-WILSON SEED COMPANY, a Corporation, Appellant
• Docket Number: 5664
• Decision Date: 02 July 1931

1 P.2d 188

51 Idaho 17

JOHN J. EHLINGER, Doing Business Under the Name and Style of JOHN J. EHLINGER COMPANY, Respondent,
v.
WASHBURN-WILSON SEED COMPANY, a Corporation, Appellant

No. 5664

Supreme Court of Idaho

July 2, 1931

CONTRACTS-CONSTRUCTION-RESTRICTION TO TERMS-MUTUAL MISTAKE-EVIDENCE, SUFFICIENCY OF-BURDEN OF PROOF-CUSTOM AND USAGE-F. O. B.

1. "F. o. b." means "free on board," indicating that property purchased will be delivered on board cars at point designated without expense to buyer.

2. Terms of plain, unambiguous contract cannot be varied or contradicted by evidence of usage and custom.

3. In absence of averment and proof of mistake, parties to contract must be held to have intended what is clearly expressed by language used.

4. Where party claims contract is incomplete or erroneous due to mistake, it must appear by clearest and most satisfactory testimony that mistake was mutual, mere preponderance of evidence being insufficient.

5. Party to contract alleging mutual mistake has burden of proof.

6. Party will not be relieved from written contract because of mistake due to his negligence, when he had power to insert stipulation fully protecting him.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Action to recover amount paid as freight on shipment of peas purchased by respondent from appellant. Judgment for plaintiff. Affirmed.

Judgment affirmed; costs to respondent.

A. H. Oversmith, for Appellant.

A custom is a part of a contract whenever it appears that the intention of the parties was to contract in accordance with an established method of doing business. (Hopper v. Sage, 47 N.Y. Super. Ct. 77, 79; Spencer v. Bruner, 126 Mo.App. 94, 103 S.W. 578; Passow & Sons v. Kirkwood Distillery, 54 Wash. 196, 103 P. 34; Brunke v. Missouri & K. Tel. Co., 115 Mo.App. 36, 90 S.W. 753.)

Abe Goff, for Respondent.

Proof of custom or usage contrary to plain meaning of words "f. o. b. cars" is inadmissible as varying terms of a written instrument. (27 R. C. L. 172; Chandler Lumber Co. v. Radke, 136 Wis. 495, 118 N.W. 185, 22 L. R. A., N. S., 713; Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 So. 672; Silberman v. Clark, 96 N.Y. 523.)

When a contract is reduced to writing, it constitutes the final agreement of the parties and prior or contemporaneous oral agreements or statements varying or adding to its terms are inadmissible. (Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; Jacobs v. Shenon, 3 Idaho 274, 29 P. 44; Stein v. Fogarty, 4 Idaho 702, 43 P. 681; First Nat. Bank v. Bews, 5 Idaho 678, 51 P. 777; Tyson v. Neill, 8 Idaho 603, 70 P. 790; Newmyer v. Roush, 21 Idaho 106, 123, Ann. Cas. 1913D, 433, 120 P. 464.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

[51 Idaho 18] BUDGE, J.

Under an agreement dated September 14, 1928, respondent purchased from appellant five cars of peas, "f. o. b. cars Moscow." The peas had previously been shipped to appellant's processing plant at Moscow from near-by...