Manufacturers' Furnishing Co. v. Kremer

• Decision Date: 01 October 1895
• Citation: 7 S.D. 463,64 N.W. 528
• Parties: MANUFACTURERS' FURNISHING CO. v. KREMER et al.
• Court: South Dakota Supreme Court

7 S.D. 463

64 N.W. 528

MANUFACTURERS' FURNISHING CO.

v.KREMER et al.

Supreme Court of South Dakota.

Oct. 1, 1895.

Syllabus by the Court.

The admission of parol testimony to show that a written order for school apparatus, apparently complete in form, was signed by members of a school board and taken into the possession of soliciting agents upon express conditions that have never been complied with, in order to constitute a delivery, or give such order any binding effect, is not a violation of the rule that extrinsic parol testimony is inadmissible for the purpose of adding to, subtracting from, contradicting, or in any manner varying the terms of a written instrument.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by the Manufacturers' Furnishing Company against Frank Kremer and others. Judgment for defendants, and plaintiff appeals. Affirmed.Joe Kirby, for appellant. E. H. Wilson, for respondents.

FULLER, J.

Plaintiff's object in bringing this suit was to obtain a judgment for $187.50 against the defendants, who are school officers, and its claim therefor is based upon a written order signed by defendants for certain school apparatus, containing a stipulation that, if the goods are not taken and paid for within 30 days after their shipment, each of the defendants (provided a majority of the board sign the order) will become personally responsible for the purchase price, and it was further stipulated that no condition of the order could be changed or modified by any verbal agreement. There was a trial to a jury, and a verdict for the defendants. Plaintiff appeals from a judgment for costs, and from an order overruling a motion for a new trial. Defendants admitted that they constituted a majority of the school board, that they signed the order, and that the goods were shipped to the station designated therein more than 30 days prior to the commencement of the action. In support of the defense upon which respondents relied, uncontroverted testimony was offered, over plaintiff's objection, which conclusively shows that defendants' signatures were obtained by the agents of plaintiff, and that the instrument was executed by the defendant Wingen in the absence of his codefendant, and the possession thereof was secured by said agents upon an express condition that the same should be of no effect, and would be returned to him or destroyed, in case the other members of the board did not sign the order and agree to...