Ohio Pottery & Glass Co. v. Pickle

• Decision Date: 16 November 1914
• Citation: 108 Miss. 51,66 So. 321
• Parties: OHIO POTTERY & GLASS CO. v. PICKLE & SON
• Court: Mississippi Supreme Court

66 So. 321

108 Miss. 51

OHIO POTTERY & GLASS CO. v. PICKLE & SON

Supreme Court of Mississippi

November 16, 1914

October 1914

APPEAL from the circuit court of Leak county. HON. C. L. DOBBS Judge.

Suit by the Ohio Pottery & Glass Company against J. R. Pickle & Son. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

J. L McMillon, for appellant.

W. A. Ellis, for appellee.

OPINION

REED, J.

Appellant sued appellees on an account for merchandise. On the trial a written order for the goods shown in the account, signed "J. R. Pickle & Son, per H. W. Pickle," was introduced in plaintiff's testimony. H. W. Pickle, the son of J. R. Pickle, and a partner with his father in the business of J. R. Pickle & Son, testified that his father was not present at the store when the order was solicited by the traveling salesman, and that he gave the order upon the understanding and agreement that, if his father was not willing for him to make the purchase, then the order could be countermanded (that is, that the sale would not be effective), and that he would not have signed the order, except upon this understanding and condition; that his father refused at once to approve the order, and notice thereof was promptly given by him to appellant. None of the goods were accepted by appellees. The case was submitted to the jury, and a verdict returned in favor of defendants.

Appellant assigns as error the action of the trial court in admitting parol testimony in reference to the order of sale, claiming that such testimony was inadmissible, because it varied and contradicted the written contract. Parol evidence was admissible in this case, because it was introduced to show a condition precedent to the order of sale. The traveling salesman received it, upon the understanding that it would not be effective and binding if it was not approved by J. R. Pickle. If J. R. Pickle withheld his willingness to the order, then the order was to be treated as not having been given and of no effect. The evidence was not to vary or contradict a written contract, but to show a condition precedent to its going into full operation. Upon this subject we quote from Elliott on Contracts, paragraph 1636:

"The general rule which excludes parol evidence, when offered to contradict or vary the terms, provisions, or legal effects of a written instrument, is subject to many qualifications. Among these qualifications is one to the effect that...