Patton-Worsham Drug Company v. Planters' Mercantile Company

• Decision Date: 10 April 1905
• Citation: 38 So. 209,86 Miss. 423
• Parties: PATTON-WORSHAM DRUG COMPANY v. PLANTERS' MERCANTILE COMPANY
• Court: Mississippi Supreme Court

38 So. 209

86 Miss. 423

PATTON-WORSHAM DRUG COMPANY v. PLANTERS' MERCANTILE COMPANY

Supreme Court of Mississippi

April 10, 1905

April 1905

FROM the circuit court of Bolivar county, HON. A. McC. KIMBROUGH Judge.

The Patton-Worsham Drug Company, appellant, was plaintiff, and the Planters' Mercantile Company, appellee, defendant in the court below. From a judgment in defendant's favor the plaintiff appealed to the supreme court. The opinion of the court states the facts of the case.

Order reversed and remanded.

Harper & Potter, for appellant.

It is too well settled to require citation of authorities that where there is an effective written contract there can be no verbal one, and that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a written instrument, and that previous conversations of the parties are not admissible to determine their intention. Cocke v Blackman, 58 Miss. 537; Lumber Co. v. Lumber Co., 71 Miss. 944.

The court will see from the record that the effort to vary the written contract was made and upheld by the court upon the idea that the matters set up in the counter-affidavit, and offered in proof by the defendant, were a part of the consideration for the purchase of the goods. This question is exhaustively treated in Baum v. Lynn, 72 Miss. 932 where this contention is decided against the view of the appellee and the lower court. Gully v. Grubbs, 1 J. J. Marshall (Ky.), 387; Ferguson v. Rafferty, 6 L. R. A 33.

Parol evidence is inadmissible to vary a written covenant under guise of showing consideration. Simanovich v. Wood, 145 Mass. 180.

Green & Green, for appellee.

In Howie v. Platt, 83 Miss. 19, this court correctly lays down the rule applicable to the case at bar when it says: "It is said in Wren v. Hoffman, 41 Miss. 620, that 'parol evidence may be admitted to show that the instrument is altogether void, or that it never had any legal existence or binding force, either by reason of fraud or for want of due execution and delivery. This qualification applies to all contracts.' The court's ruling, in admitting the testimony showing that the contract was procured by fraud, was therefore correct. It is one thing to attempt to vary, alter, or contradict the terms of a written contract once validly executed, and quite a different thing to show that the contract offered never had any legal existence, because its execution was procured by fraud."

Our contention is that the case falls squarely within this doctrine, as the appellee was duped into signing the same by the false and fraudulent representations of the agent of the appellant. The contract was never in being; it was procured by imposition and misstatements of material facts that were false, and the appellant knew them to be false when the same were made. Consider the verbiage of the contract. There is not a single line in it but that is declaring the good faith of the appellant and declaring that the appellee was to be bound by the terms of the same, and its declarations in this behalf are its own condemnation. Consider the badges enumerated in Twyne's Case, 3 Co., 81a: "6th. That the deed contains that the gift was honestly made, truly and bona fide; for clausae inconsuetae semper...