Jobbers' Overall Co v. C. S. Hollister Co

• Decision Date: 03 October 1923
• Docket Number: (No. 159.)
• Citation: 186 N.C. 207,119 S.E. 1
• Court: North Carolina Supreme Court
• Parties: JOBBERS' OVERALL CO. v. C. S. HOLLISTER CO.

119 S.E. 1

(186 N. C. 207)

JOBBERS' OVERALL CO.

v.C. S. HOLLISTER CO.

(No. 159.)

Supreme Court of North Carolina.

Oct. 3, 1923.

Appeal from Superior Court, Craven County; Grady, Judge.

Action by the Jobbers' Overall Company against the C. S. Hollister company. Judgment for plaintiff on a directed verdict, and. defendant appeals. New trial.

Civil action to recover the value of certain overalls, alleged to have been sold and delivered to defendant by plaintiff. From a directed verdict in favor of plaintiff, the defendant appealed, assigning errors.

Moore & Dunn and R. A. Nunn, all of Newbern, for appellant.

H. P. Whitehurst and. Guion & Guion, all of Newbern, for appellee.

STACY, J. Plaintiff's agent secured from the defendant a paper writing purporting to be an unconditional order for certain overalls to be shipped by plaintiff to defendant. The writing contained the following stipulation:

"This contract is not subject to cancellation unless delivery is delayed beyond a reasonable length of time."

There is no contention of any delay in delivery. Defendant denied liability, and upon the trial offered to show that the order in question was given with the distinct understanding and upon the express condition that the same should not become effective or operative, if certain overalls previously ordered from another dealer were received by defendant, and further that, before plaintiff had acknowledged and accepted said order, defendant advised the plaintiff by letter that defendant would receive the overalls previously ordered as aforesaid, and that defendant would and did thereby cancel the order given to plaintiff's agent. Notwithstanding this letter, plaintiff thereafter shipped the overalls, and now brings this suit to recover their value as per stipulated price.

All of the defendant's proposed evidence was excluded on objection. Therefore the single question presented by the appeal is the competency or incompetency of the evidence offered by the defendant. If the evidence in question was offered for the purpose of establishing a condition subsequent, resting in parol, and in direct conflict with the express terms of the written instrument, it was properly excluded. The general rule is that no verbal agreement between the parties to a written contract, made before or at the time of the execution of such contract, is admissible to vary its terms or to contradict its provisions. All such agreements are considered as varied by and merged in the written...