Fawkner v. Lew Smith Wall Paper Co.

• Citation: 55 N.W. 200,88 Iowa 169
• Parties: FAWKNER v. LEW SMITH WALL PAPER CO. ET AL.
• Decision Date: 16 May 1893
• Court: United States State Supreme Court of Iowa

88 Iowa 169

55 N.W. 200

FAWKNER

v.LEW SMITH WALL PAPER CO. ET AL.

Supreme Court of Iowa.

May 16, 1893.

Appeal from district court, Polk county; M. Kavanaugh, Judge.

Action on a written contract for the delivery of wall paper. Verdict and judgment for defendants. Plaintiff appeals.J. R. Barcroft and Crom Bowen, for appellant.

P. F. Bartle, for appellees.

KINNE, J.

1. The question involved in this case was deemed of such importance that a rehearing was granted, and further argument had. The original opinion will be found in 49 N. W. Rep. 1003. Plaintiff declared upon the following written contract: “Des Moines, Iowa, July 11, 1887. On demand I promise to deliver to the order of E. F. Fisher eight hundred dollars, (less 20 per cent. discount,) in wall paper, at wholesale price, good, clean, assorted stock out of my store on Fifth street, Des Moines, Iowa. No storage. Lew Smith Wall Paper Co.” On the same day there was indorsed on the back of said contract a statement signed by Fisher that he had given Towne & McFarland an order for $200 worth of said paper, and that it had been delivered to them; also, an assignment of the contract to the plaintiff. It was averred that demand had been made for the balance of the goods at the wholesale price, and that defendant refused to deliver the goods at said price. Judgment was asked for $600 and interest. The defendant admitted the execution of the contract, the payment of the $200, and denied all the other allegations in the petition. He also pleads that, at the date of making the order and of its acceptance by Fisher, the “wholesale price” for good, clean, assorted wall paper, and the price upon which said order was based, and at which said paper was to be delivered by defendant to and accepted by payee was agreed upon, and set forth on a card, then shown Fisher, and a copy of same is attached to the answer; that the schedule of prices printed upon the card were then agreed upon between the parties to said order as the then wholesale prices at which paper was to be delivered, and said card accompanied the order, as a part of it, and a part of the contract fixing the wholesale price for said paper. It is also averred that defendant has tendered the $600 in paper to plaintiff, in accordance with the contract and terms of said card.

2. Defendant was permitted to prove that when the contract was made between the parties, he handed plaintiff's assignor a card, having printed thereon a price list of wall paper, and that he was to take the paper mentioned in the contract at the prices stated on the card. This evidence was objected to, as it tended to vary and contradict the written contract of the parties. Defendant claims the evidence was admissible as constituting a part of the contract; that though it was on a separate piece of paper, still it was in fact but a part of, and altogether constituted but, one contract. The rules of law touching the admission of parol, contemporaneous evidence, to add to, vary, or contradict the terms of a written contract, are well settled. The difficulty in these cases generally arises, not as to any doubt as to what the law is, but as to whether or not the case presented comes within the rules prohibiting the introduction of such evidence. We do not think the evidence was admissible. It tended to add to, vary, and contradict the written contract. By the terms of the contract defendant company bound itself to deliver to plaintiff, whenever he demanded it, wall paper of the value of $800, (less 20 per cent. discount,) and the price of the paper was by the very wording of the contract to be the wholesale price at the time of such delivery. The instrument, it occurs to us, was in no wise ambiguous or uncertain, so as to call for extrinsic evidence to render certain the meaning of language which, without it, would be obscure or unintelligible. It required no explanation as to what the “wholesale price” meant. The words “wholesale price” have a fixed, certain, and well-defined meaning in the mercantile world. They mean the price fixed on merchandise by one who buys in large quantities of the producer or manufacturer, and who sells the same to jobbers, or to retail dealers therein. Neither can it be successfully claimed that the written contract leaves it a matter of doubt or uncertainty as to what wholesale price should be used in determining the value of the paper. The plaintiff or his assignor, by the plain terms of the contract, had a right to demand its fulfillment whenever he chose so to...