J.B. Colt Co. v. Britt

• Decision Date: 25 July 1924
• Docket Number: 11557.
• Citation: 123 S.E. 845,129 S.C. 226
• Parties: J. B. COLT CO. v. BRITT.
• Court: South Carolina Supreme Court

123 S.E. 845

129 S.C. 226

J. B. COLT CO. v. BRITT.

No. 11557.

Supreme Court of South Carolina

July 25, 1924

Appeal from Common Pleas Circuit Court of McCormick County; C.J Ramage, Special Judge.

Action by the J. B. Colt Company against T. J. Britt. From a judgment entered on a verdict directed for plaintiff defendant appeals. Affirmed.

R. J Southall, of McCormick, and J. Wm. Thurmond, of Edgefield, for appellant.

Ross & Owens, of McCormick, for respondent.

MARION J.

Action upon a written contract to recover the purchase price of a lighting plant. The circuit judge directed a verdict for the plaintiff, and from judgment thereon the defendant appeals.

The case for the plaintiff is substantially this:

On May 13, 1918, the defendant at McCormick, S. C., signed a written order for a Colt carbide generator and certain appliances and fixtures, to be furnished by the plaintiff f. o. b. its factory at Newark, N. J., for a total purchase price of $232, payable upon the terms therein specified. The order was solicited by an agent of the plaintiff, who forwarded it to the home office of the plaintiff in New York, where it was duly accepted by the plaintiff on May 20, 1918. Under the same date, the plaintiff wrote defendant, advising that the order had been received, that it had been accepted "according to the conditions set forth therein," and that shipment would be made "according to the instructions on the contract." The order contained no condition or stipulation that the plaintiff was to undertake to install, or have installed, the apparatus to be furnished, but, among other stipulations, contained the following:

"This order shall become a contract between the purchaser and the company upon acceptance thereof in the space below by one of the officers of said company; it being understood that this instrument, upon such acceptance, covers all the agreements between the purchaser and the company, and that no agent or representative of the company has made any verbal agreements modifying or adding to the terms and conditions herein set forth. It is further understood that upon the acceptance of this order the contract so made cannot be cancelled or revoked by either party, nor may it be altered or modified by any agent of the company, or in any manner except by agreement in writing between the purchaser and the company acting by one of its officers."

The goods were shipped by plaintiff and were received by defendant, who at the time of the trial in October, 1923, had the boxes containing the equipment in his possession.

The defendant admitted the execution of the written contract set up by plaintiff, but alleged that it was procured by fraud, in that the plaintiff's agent had induced the defendant to sign it without reading it by falsely representing that the order embodied the terms and conditions of the contract actually agreed upon between them, which were, in substance, that the plaintiff was not only to furnish the plant at a certain price, but also to install it at an additional cost to defendant of $35. The theory or theories of defense upon which defendant's answer is framed are not entirely clear. The answer undertakes to allege substantially the foregoing facts set forth as separate defenses, with the view, apparently, of asserting (1) that the contract sued on never existed in that it was void for fraud in its inception; (2) or that defendant was entitled to the equitable relief of rescission or reformation of the written contract; or (3) that there was a valid independent contract on the part of the plaintiff to install the plant, the breach of which by plaintiff entitled defendant to recover damages by way of counterclaim.

Under the allegations of the answer the trial judge permitted the defendant, over the plaintiff's objection, to introduce the following evidence: (1) Testimony of the defendant to the effect that the conditions of the contract upon which he had actually agreed with plaintiff's agent were that the plaintiff would furnish the lighting plant at a certain price, etc., and would also install the plant in his house for the additional sum of $35; that having verbally agreed with the agent upon the terms and conditions of the contract, the agent prepared the written order, which defendant signed without reading, upon the representation of the agent that the order "covered everything"; that no copy of the order was left with defendant, but that at the time of the signing of the order the plaintiff's agent left with him a memorandum in writing. (2) The memorandum in writing referred to, signed "T. G. Sexon, Agent," which correctly set out the prices and terms of payment of the outfit and in addition thereto contained the following: "Installing and furnishing pipe, etc., for 7 outlets, $35.00; terms cash; we also agree for installers to hang fixtures and put on burners where house is already piped." (3) Certain correspondence in the form of letters written by the parties, subsequent to the shipment of the goods.

At the conclusion of the introduction of evidence, the plaintiff moved to strike out all evidence adduced by defendant "with reference to any stipulation, or agreement, or representation" not contained in the written contract. The motion was granted. Thereupon plaintiff moved for a directed verdict, which motion was granted. The exceptions assign error in the foregoing rulings upon grounds which will be substantially covered in the following discussion.

If the written contract, the signing of which was admitted by defendant, was a valid contract, defendant was, of course, bound by the terms and conditions thereof. If bound by the written contract, it is entirely apparent that he was not entitled to introduce evidence to add to, vary, or contradict its provisions. That the evidence, including the memorandum in writing signed by the agent, offered by defendant to establish that plaintiff through its agent had agreed to install the lighting plant, was obnoxious to the parol or extrinsic evidence rule, in that it tended to add to, alter, and contradict the written contract, is not open to serious question. The written order, signed by defendant on May 13th, by its terms did not become effective as a contract until May 20th, when it was accepted in writing by the plaintiff through one of its officers at its New York office. The alleged agreement with the sales agent as to installation was made prior to the date of the company's acceptance of the order, when the written contract upon which plaintiff here relies came into existence. The evidence offered to establish the installation agreement not only tended to change the force and effect of the written contract as consummated, by adding a material condition--a condition so material that defendant relied upon its absence from the written contract to avoid it--but also tended directly to contradict the express stipulations therein contained to the effect that the instrument covered "all the agreements between the purchaser and the company," and that no agent had made any verbal agreement "modifying or adding to the terms and conditions" therein set forth. J. B. Colt Co. v. Freedman, 124 S.C. 211, 117 S.E. 351; J. B. Colt Co. v. Kinard (S. C.) 119 S.E. 581; J. B. Colt Co. v. Turlington, 184 N.C. 137, 113 S.E. 600; Armour Fertilizer Co. v. Hyman, 120 S.C. 375, 113 S.E. 330; and see Oxweld Acetylene Co. v. Davis, 115 S.C. 426, 106 S.E. 157, and Stalnaker v. Tolbert, 121 S.C. 437, 114 S.E. 412. If, therefore, the written contract sued on was a valid contract which bound the defendant, there can be no question that the evidence offered and introduced by him to establish the extraneous installation agreement was properly stricken out by the trial judge.

But if the written contract was not binding upon defendant, in that it was invalid for fraud in its inception or procurement, there was, from defendant's standpoint, no written contract and, of course, no basis for the application of the parol or extrinsic evidence rule. The point upon which the appeal turns, therefore, is whether there was sufficient evidence to require, either that the trial judge held as a matter of law that the defendant was entitled to avoid the written contract for fraud in its procurement, or that the issue of fraud in this aspect of the case should have been submitted to the jury. It is clear that if the evidence relied upon by defendant did not as a matter of law or equity justify a finding of fact that there was such fraud as would entitle defendant to avoid the written contract, there was no issue of fact properly determinable by the jury, and the circuit judge's ruling upon the motions to strike out the evidence and to direct a verdict was not erroneous. Broadly, therefore, the inquiry is whether the circuit judge erred in holding that the evidence adduced was not sufficient to warrant a finding of fact that the defendant was entitled to avoid the written contract for fraud.

That inquiry presents a problem for the solution of which it cannot be said that the law furnishes any satisfactory rule or formula. It involves the logical adjustment upon sound principle or principles of two distinct policies of the law. One is that no person should be permitted to found an enforceable right upon fraud; the other is that the public interests require that commercial transactions be safeguarded, negligence discouraged, and the opportunity for and temptation to perjury minimized, by attaching to a written contract a certain conclusive force or artificial sanctity as the memorial of the transaction it...