Memphis Automatic Music Co. v. Chadwick

• Decision Date: 20 February 1933
• Docket Number: 30440
• Citation: 164 Miss. 635,146 So. 137
• Court: Mississippi Supreme Court
• Parties: MEMPHIS AUTOMATIC MUSIC CO. v. CHADWICK et al

146 So. 137

164 Miss. 635

MEMPHIS AUTOMATIC MUSIC CO. v. CHADWICK et al

No. 30440

Supreme Court of Mississippi

February 20, 1933

Division A

1 SALES.

Buyer's execution of sales contract after receiving piano with full knowledge of breach of warranty held waiver of breach.

2 SALES.

Seller's agreement to make repairs and take back piano if unsatisfactory, in return for buyer's paying past-due notes therefor, held not supported by consideration.

HON. D M. ANDERSON, Judge.

APPEAL from circuit court of Leake county HON. D. M. ANDERSON, Judge.

Suit by the Memphis Automatic Music Company against George H. Chadwick and others. Judgment for defendants, and plaintiff appeals. Reversed, and judgment entered for plaintiff.

Reversed, and judgment here for appellant.

G. S. Landrum, of Koscuisko, for appellant.

Where a written contract was negotiated by an agent and contained a written stipulation that no agent had made any representation other than those embraced in the contract and that the contract shows on its face that it was to be sent to the principal at its home office for acceptance or rejection the terms of the contract cannot be varied by showing other representations made at the time of the signing of the contract by the first party as the contract is the sole repository of its term.

J. B. Colt Company v. McCullough, 105 So. 744.

Where contract in writing contains stipulated warranties evidence of oral warranties not made subsequent to exception of contract for additional consideration, is inadmissible.

J. B. Colt Company v. McCullough, 105 So. 744.

There can be no implied warranties as to the condition of machine in a present executed sale of an instrument.

Gerard Motor Company v. McEachern, 116 So. 816.

The only element of fraud offered as a defense by the appellees is the statement that the instrument was as good as new. This testimony was inadmissible under this contract by reason of the fact that the contract was the sole agreement between the parties and that there was nothing in the contract other than the piano was in good condition and was accepted as such by the appellees. "Parol Evidence" is not admissible to show agreement not written in contract providing that it contained all agreements between the parties.

J. R. Watkins Co. v. Poag et al., 122 So. 473.

A promise to pay a person an additional amount for services which he was already under obligation to perform, is without consideration and unenforceable.

Bell v. Oates, 53 So. 491.

The burden of proof as to the consideration of a contract rests with the plaintiff where it is not by law implied.

Clopton v. Hall, 59 Miss. 482.

The burden of proving fraud is upon the person who is claiming fraud.

The trial court erred in not granting the appellant a peremptory instruction as asked by appellant. In view of the fact that all of appellees' testimony shows that there was no fraud in the representations of appellant and his agent, the testimony of appellees should have been excluded and the jury instructed to return a verdict for the appellant.

F. E. Leach, of Carthage, for appellee.

In the numerous cases cited by appellant, we find that with but few exceptions the court was dealing with the authority of agents to change by oral agreements a contract in writing which specifically stipulated that "no verbal or written agreement not contained therein would be recognized." We respectfully submit that the principles with which the court was dealing in the above cases were not involved in the instant case. There is not an element of agency in this case, for every part and parcel of the transaction was between the appellees and one Mr. Priddy who testified that he was the "owner and manager" of the Memphis Automatic Music Co.

The appellant had his day in court, presented his case to the court and jury, and every assignment of error was passed upon by the court and by the jury under proper instructions and finally decided against him. If under these conditions and circumstances he would be entitled to a new trial, we respectfully submit that there would be no end to litigation and the "goal" would never be reached.

Ennis v. Yazoo & M. V. R. Co., 79 So. 73; Shank v. Geiger, 96 So. 515.

OPINION

Cook, J.

The appellant instituted this suit in the circuit court of Leake county against the appellees, George H. Chadwick and W. P. Edwards, to recover a balance alleged to be due on the purchase price of a piano and accessories, and from a judgment in favor of the appellees, this appeal was prosecuted.

On September 27, 1929, the appellant entered into a conditional contract with the appellees for the sale of a used piano to be delivered at Carthage, Mississippi, in good condition, for which the appellees agreed to pay five hundred fifty dollars one hundred dollars in cash, and the balance to be evidenced by eighteen promissory notes payable monthly. The piano was delivered at the appellees' place of business on ...