J. B. Colt Co. v. Hinton

• Decision Date: 25 October 1926
• Docket Number: 25838
• Citation: 109 So. 856,143 Miss. 800
• Court: Mississippi Supreme Court
• Parties: J. B. COLT CO. v. HINTON. [*]

109 So. 856

143 Miss. 800

J. B. COLT CO. v. HINTON. ^[*]

No. 25838

Supreme Court of Mississippi

October 25, 1926

Division B

EVIDENCE. Where written contract provided that it covered all agreements, that no representative had made statement modifying or adding to its terms, and that order for goods could not be altered or modified, except by written agreement, admitting evidence of agent's agreement varying terms of contract was error.

Where a contract for sale of property provides that upon acceptance the written contract covers all of the agreements between the purchaser and the company, "and that no agent or representative of the company has made any statement, verbal or written, modifying or adding to the terms and conditions herein set forth,..." and that said order "cannot be altered or modified by any agent of the company in any manner except by agreement in writing between the purchaser and the company acting by one of its officers," it is error to admit evidence varying the terms of the contract by a mere agent of the company.

HON. R S. HALL, Judge.

APPEAL from circuit court of Perry county, HON. R. S. HALL, Judge.

Action by the J. B. Colt Company against I. J. Hinton. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

C. C Smith and Welch & Cooper, for appellant.

This suit was founded upon a note evidencing the purchase price of a lighting plant. The contract of purchase and other contracts are the same as those considered by this court in Colt Co. v. Odom, 101 So. 853. The court erred in refusing the peremptory instruction requested.

The court will observe that the contract is simply the order of certain machinery and appliances. The installation is separate and separately paid for. It is sold with only two warranties. Nothing is said about the pipes not leaking. This, clearly, is a fault of the installation. Appellant sold the plant but did not install it.

As to the amount of carbide required, this court in Colt Co. v Odom, 101 So. 853, held that the amount of carbide necessary was not warranted. So appellee has obtained what he bought. No warranty has been breached. The things warranted, so far as this record shows, have come up to the warranty. The machine, as the record shows, was in accord with the contract. There was no deviation therefrom.

The instruction given appellee is erroneous in two particulars: (1) The jury is told that "if you believe from the evidence that said light plant is useless and valueless for the purpose of lighting, then you will find for the defendant." In other words, the jury is told that if useless or valueless as a lighting plant, the verdict should be for the defendant. But see Colt Co. v. Mazingo, 106 So. 533; Colt Co. v. Odom, supra.

(2) The court will note that the instruction says that if the jury believes that the note sued on was in renewal and that the consideration was a light plant; and if the jury believes that appellant agreed to put the plant in the condition originally promised and that said promise was the only consideration of the note sued on, and the plant was valueless, the verdict should be for the defendant.

This is an involved instruction. But from it may be inferred that if the jury believed the promise was the only consideration, the verdict should be for the appellee if the plant was useless as a lighting plant.

Manifestly, the promise was not the only consideration. The purchase price of the plant was there. The appellee obtained further time in which to pay. We submit that the instruction is fatally erroneous.

A. T. L. Watkins and H. D. Young, for appellee.

If it were not for the instruction which appears to be in the face of J. B. Colt Co. v. Odom, 101 So. 853, and J. B. Colt Co. v. Mazingo, 106 So. 533, we would ignore the appeal. The pleading and proof show without contradiction that the plant was worthless, but the instruction has this appendage to it "worthless as a light plant." Of course, every juror knew if it was worthless as a light plant, it had no value in the world, but we omitted to make such proof. We ask the court to remember that the note sued on was not given for the light plant, but on the sole promise to put the light plant "spick and span" and the testimony is "that they never touched it."

It is not true that the suit was founded upon a note, evidencing the purchase price of a lighting plant, and all the depositions about the conditions of a light plant up in New Jersey or New York were foreign to the issue. The sole question was whether the appellant complied with its promises made to secure the signature to the note.

Appellant got all the issues to...