National Novelty Import Co. v. Duncan

• Decision Date: 26 January 1916
• Docket Number: (No. 908.)
• Citation: 182 S.W. 888
• Parties: NATIONAL NOVELTY IMPORT CO. v. DUNCAN.
• Court: Texas Court of Appeals

182 S.W. 888

NATIONAL NOVELTY IMPORT CO. v. DUNCAN.

(No. 908.)

Court of Civil Appeals of Texas. Amarillo.

January 26, 1916.

On Motion for Rehearing, February 16, 1916.

Appeal from Gray County Court; Siler Faulkner, Judge.

Action by the National Novelty Import Company against W. E. Duncan. Judgment for defendant, and plaintiff appeals. Affirmed.

Hoover & Dial, of Canadian, for appellant. Chas. C. Cook, of Pampa, R. E. Underwood, of Amarillo, and P. R. Underwood, of Floydada, for appellee.

HENDRICKS, J.

The appellant instituted suit against the appellee, for the sale and delivery of certain items of jewelry and upon the following order, signed by the appellee:

"National Novelty Import Company, St. Louis, Mo. — Gentlemen: Please ship at your earliest convenience f. o. b. St. Louis, goods above listed, on above terms, which we have carefully read and found satisfactory. We agree that no statements made by ourselves or the salesmen will be a part of this agreement, unless indorsed in writing on the original order. Positively no goods on commission or consignment.

                              [Signed] W. E. Duncan
                                          "Pampa, Texas."
                

The defendant, Duncan, among other things, pleaded that it was agreed:

"That such order should not be delivered to plaintiff for the purpose of being filled prior to the expiration of such period of 30 days; and the said Smith agreed that if defendant would execute such purported order, that he would hold the same for such period of 30 days, and that, if within that period the defendant should decide that he did not desire to have such goods shipped, then, upon notifying plaintiff of his desire, such conditional order * * * should cease and terminate. * * *"

The plaintiff excepted to this pleading on the ground that the understanding and agreement was not alleged to be in writing, and, if true, could not be urged as a defense because the same would ingraft parol terms upon the written instrument, not contained therein, which exceptions were overruled by the court, and the action assigned as error.

It is also assigned, for the same reasons, that the trial court erred in permitting the defendant to testify:

"That he had an agreement with the agent of plaintiff that he would hold the order 30 days before the goods would be shipped out, * * *" etc.

Page on Contracts, vol. 2, § 1209, announces the rule applicable to this condition as follows:

"If the party against whom relief is sought, on a written contract concedes that the contract was placed in the possession of the adversary party, but claims that it was taken with the understanding that it was not to go into effect unless some other or further event should happen, and that such event has not happened, he is not seeking to vary or contradict the contract, but to show that no contract between the parties ever came into effect. Evidence of conditions precedent to the taking effect of a written contract is therefore admissible. This is simply the rule that an instrument may be delivered to the adversary party to take effect on the happening of a future event, restated in terms of the parol evidence rule."

In Parker v. Naylor, 151 S. W. 1103, this court said, citing numerous authorities:

"It is the settled law of this state that parol evidence is always admissible to show that a written contract was delivered, effective upon conditions."

It is suggested that the statements and agreements, unless indorsed upon...