F. N. Phillips Co., Inc. v. Gay's Express, Inc
| Decision Date | 13 May 1941 |
| Parties | F. N. PHILLIPS CO., INC. v. GAY'S EXPRESS, INC |
| Court | Vermont Supreme Court |
Special Term at Rutland, November, 1940.
Parol Evidence Rule.---1. Exception to Exclusion of Evidence.---2. Parol Evidence Rule is Substantive Law.---3. Integration of Contracts.---4. Exclusion of Parol Evidence Affecting Later Written Contract.---5. No Error in Excluding Improper Evidence.---6. Pleading in Anticipation of Defense Not Estop Later Reliance on Parol Evidence Rule.
1. No exception to the charge is necessary to make available in Supreme Court an exception previously saved to the exclusion of offered evidence.
2. The parol evidence rule is one of substantive law and not evidence merely, Noyes v. Evans, 6 Vt. 628 Carpenter v. McClure, 37 Vt. 127, Davis v Goodrich, 45 Vt. 56, O'Brien, Admr. v. Holden et al., 104 Vt. 338, to the contrary notwithstanding.
3. Contracts in the nature of bills of lading in writing and unambiguous are presumed to integrate the contracts and can not be varied by a previous oral agreement.
4. Evidence adduced in support of an oral agreement to alter a later written unambiguous contract is immaterial and incompetent to any issue as to the written contract.
5. If evidence that is excluded could have no legal effect, there is no harmful error in having excluded the same.
6. The parol evidence rule being a rule of substantive law, no waiver occurs in a plaintiff pleading in anticipation of defense matter which would tend to vary later written contracts and failure to object to evidence adduced in support of such defense does not estop the plaintiff from relying on the parol evidence rule to exclude matters by way of prior oral agreements offered in derogation of the written contract.
ACTION OF CONTRACT. Trial by jury, April Term, 1940, Windham County Court, Shields, J., presiding. Verdict and judgment for plaintiff. Exceptions to defendant. The opinion states the case.
Judgment affirmed.
Raymond Trainor for defendant.
Frederick J. Fayette for plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
The complaint in this case contained two counts, the joinder of which is not here questioned. It is apparent that in the trial the plaintiff relied only on the first which reads as follows:
The defendant in its answer admitted certain of the allegations in the complaint and denied others including that of shipment on a strictly C.O.D. basis and delivery without the consent or authority of the plaintiff. It alleged, in substance, that on November 20, 1939, the plaintiff and the Harbro Co. entered into an agreement in regard to the C.O.D. shipments from plaintiff to Harbro Co. to the effect that the shipments could be delivered without payment of cash and upon receipt of checks post dated ten days and made payable to the plaintiff. Defendant also alleged that this agreement was communicated to it by Harbro Co. immediately after it was made and that thereafter all deliveries were handled in accordance with the terms of this agreement and all shipments included in plaintiff's specifications were shipped and delivered in pursuance of and in accordance with the terms of the agreement until a certain day in December, 1939, when the Harbro Co. because of financial trouble was unable to honor its checks and temporarily ceased doing business.
The first witness called by the plaintiff was David Davidoff, its treasurer and general manager. During the course of his examination he was asked:
"Q. Mr. Davidoff, did you ever enter into any agreement with Gay's Express Company as to a variation of the terms on which these shipments were made?
A. No, sir, I did not.
Q. Did Gay's Express Company ever ask you regarding change in the terms of these deliveries or shipments?
A. No, sir, they did not."
The cross examination of this witness was devoted largely, if not entirely, to an attempt to show that a change had taken place in the manner of doing business between the plaintiff and Harbro Co. and that this change was in effect at the time the deliveries in question were made. The witness admitted that when business relations were commenced with Harbro Co. in September, 1939, the checks that were received by the plaintiff for payment of goods shipped Harbro Co. were drawn by the defendant. He also admitted that after he had a talk with a Mr. Ben Hartwell of the Harbro Co. a change was made so that checks of the Harbro Co. dated ten days after the date of Harbro invoices, were received in payment of the same from the defendant instead of defendant's own checks as theretofore. The witness denied that this general change came about through any arrangement with the Harbro Co. and professed not to know much about the change, in effect placing it on the defendant. He did admit that such an arrangement in the change of checks was had with Harbro Co. in one instance and later admitted another instance.
During the course of the cross examination the witness was asked: " This question was objected to as "Irrelevant to the issues at the present time." It was ruled relevant and the plaintiff allowed an exception. The answer was: "No, we had no such arrangement except in one exception which is clearly marked on the invoice."
Outside of this one instance all timely objections to questions on this cross examination were either based on the lack of knowledge of the witness as to the claimed post dating of the checks or to the wording of a certain question.
In re-direct examination after questions, the answers to which indicated he did not know that certain checks were post dated, the witness testified that with two exceptions all the invoices in question carried C.O.D. instructions and none other; that there was never any deviation from that practice and that he never entered into any agreement with defendant relative to a change in the instructions that appeared on the original invoice.
Max D. Bliss, treasurer of the defendant, was next called as a witness by the plaintiff. He identified certain C.O.D. freight bills covering the shipments in question which were admitted as exhibits. He testified, in effect, that freight bills are contracts between the shipper and the carrier; that each freight bill represents an entirely new contract; that the freight bill itself shows the conditions and instructions which govern the delivery of the goods and that on the face of the freight bills admitted as exhibits there were no other instructions except C.O.D. He did not admit that there were no other contracts relating to the shipments in question other than the freight bills. He was then asked: "Is there any other evidence or paper, Mr. Bliss, in your records, which indicates the conditions or instructions of delivery to the carriers?" He replied: "There was an agreement between the Harbro Manufacturing Company and Phillips that we were to deliver these goods and accept checks dated ten days after the date of this freight bill." He then testified that he knew personally of this agreement and was asked how he learned of it and replied that it was called to his attention by a clerk in his office and that he then went to Boston to see Mr. Hartwell of the Harbro Co. That Hartwell told him of the agreement and that it was to continue in force until he (witness) was advised differently.
The witness was then questioned further in respect to the agreement and testified, in effect, that he acted on Mr. Hartwell's word and did not get in touch with the plaintiff to verify it but as plaintiff did not complain of the change in checks he assumed that it had consented to the terms of the new agreement.
The witness was then cross examined by defendant's counsel relative to the talk with Hartwell concerning the agreement without objection by plaintiff. On re-direct he was again questioned as to the talk with Hartwell and the change in checks. On re-cross examination he was asked why the change was made at that time, referring to the time of the talk between witness and Hartwell. He started to state in answer what Mr. Hartwell told him when he was interrupted by an objection based only on the ground that the answer must be "hearsay," and it was excluded.
The plaintiff put on another witness whose testimony is not here material and then rested its case.
The first witness called by the defendant was Arthur Hartwell treasurer of the Harbro Co. After some preliminary questions he was asked to tell the date when a change was made in the drawing of the checks of the Harbro Co. so that the payee in the future would be the plaintiff instead of the defendant as in the past. This question was objected to on the ground, in effect, that it was an attempt to vary the terms of an unambiguous written contract by parol evidence. On the promise of the defendant to show that this oral agreement was acted upon the court admitted the question, very apparently on the issue...
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