Perrault v. White Sewing Mach. Co.

• Decision Date: 31 March 1930
• Docket Number: 28411
• Citation: 127 So. 271,157 Miss. 167
• Court: Mississippi Supreme Court
• Parties: PERRAULT v. WHITE SEWING MACH. CO

127 So. 271

157 Miss. 167

PERRAULT v. WHITE SEWING MACH. CO

No. 28411

Supreme Court of Mississippi

March 31, 1930

Division B

Suggestion of Error Overruled May 5, 1930.

APPEAL from circuit court of Adams county HON. R. L. CORBAN, Judge.

Action by the White Sewing Machine Company against F. J. Perrault. From an adverse judgment, defendant appeals. Affirmed.

Judgment affirmed.

Brandon & Brandon, of Natchez, for appellant.

The mere fact that one contract entered into between the parties is in writing does not, as a matter of law, prevent the contracting parties from entering into other contracts verbally at the same time, or prior to the execution of the specialty, and this is so even though the verbal contract and the written contract may rise out of the same general transaction and be rather closely inter-related. Of course nothing in a verbal contract can be admitted in evidence to change, alter, vary or modify the terms of a written contract.

4 Wigmore on Evidence, Sections 2429 through 2431; Durkin v. Cobleigh, 17 L.R.A. 270, 22 C. J. 1261, section 1686.

In the application of the Parol Evidence Rule, the court must look to the intention of the parties as to whether or not the writing excludes from consideration by the court, by the intent of the parties, the oral agreement which has been plead.

10 R. C. L., section 228, p. 1035; 4 Wigmore on Evidence, section 2431; Ref. Evidence, 22 C. J. 1233, section 1645.

The parole evidence rule is never invoked to exclude evidence contradicting a statement of fact or a mis-statement of fact.

22 C. J. 1233, section 1645.

Kennedy & Geisenberger, of Natchez, for appellee.

Parol testimony is not admissible to alter, vary or add to written instrument which must be submitted to home office of party for approval and which states specifically the instruments contains all the terms of the contract.

J. B. Colt Co. v. Odom, 136 Miss. 651, 101 So. 853, Brenard Mfg. Co. v. Sumrall, 139 Miss. 507, 104 So. 160; J. B. Colt Co. v. Hinton, 143 Miss. 800, 109 So. 856; Jourdan v. Albritton, 146 Miss. 651, 111 So. 591; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Stevens v. Stansley, 153 Miss. 801, 121 So. 814; J. R. Watkins Co. v. Poag, 154 Miss. 222, 122 So. 473; Tropical Paint & Oil Co. v. Mangum & Hatcher, Miss. , 125 So. 248.

Parties cannot accept goods under the written contract, and, when sued for the price agreed to be paid, reduce that price by showing that appellees agreed to do something else not mentioned in the contract.

Columbia Star Mill Co. v. Russell, 89 Miss. 437, 42 So. 233; Cheek-Neal Coffee Co. v. Morrison-Hinton Grocery Co., 96 Miss. 835, 51 So. 1.

An express statement in writing that it constitutes the entire agreement between the parties is, of course, sufficient to exclude parol evidence to show a further agreement with respect to the same subject-matter.

22 C. J., p. 1253, sec. 1664.

Argued orally by Gerard Brandon, for appellant, and by W. A. Geisenberger, for appellee.

OPINION

Ethridge, P. J.

The White Sewing Maching Company, a corporation, was plaintiff and sued the appellant, Perrault, upon a promissory note made exhibit to the declaration, which note reads as follows:

"$ 739.00. Natchez, Mississippi, March 27, 1925.

"For Value Received, Nine months after date, I promise to pay to order of White Sewing Machine Company, Seven Hundred thirty-nine 00/100--Dollars, with interest from September 27, 1925, at the rate of six per cent per annum.

"(Please insert the name of the Bank to which you wish us to send this note for collection).

"Bank Bank of Commerce at Natchez, Mississippi.

"The makers and endorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note, and agree that if collected after maturity, ten per cent for attorney's fees shall be added, and in case of suit, judgment for same shall be included in judgment on note without any relief whatever from exemption laws.

"F. J. PERRAULT.

"P. O. Address Natchez, Mississippi.

"No. of Note 2297102. Due December 27, 1925.

"Endorsed:

"Pay Bank of Commerce or order for collection for White Sewing Machine Co., Cleveland, Ohio.

"J. C. Sanderson, Sec. and Treas.

"Credit 4/26/26-- $ 35.00."

Another exhibit to the declaration was a contract signed by Perrault ordering certain sewing machines from the White Sewing Machine Company, together with attachments and advertising matter. This contract read as follows:

"Traveling Solicitor

J. H. Ware.

"Date 3/12, 1925.

"White Sewing Machine Co., Cleveland, Ohio.

"Gentlemen: Please ship by Freight Released, F. O. B. Cleveland, Ohio.

"To F. J. Perrault

"Town Natchez

State Miss.

"Via, Freight

When at once

The Following White Sewing Machines, Etc.

Vibrating Shuttle Styles

No. 67 G oak only 4 Dr. enclosed case

73.00

No. 61 Sit Straight Oak @

79.00

No. 73 Oak Cabinet @

96.00

Rotary Shuttle Electrics

No. 41 Electric Amer. Walnut @

90.00

No. 91 Electric Golden Oak @

138.00

No. 91 Electric Amer. Walnut @

142.00

No. 91 Electric Mahogany @

148.00

No. 83 Electric Golden Oak @

124.00

No. 83 Electric Amer. Walnut @

128.00

No. 83 Electric Mahogany @

134.00

(7807)

Rotary Shuttle Styles

No. 67 G Oak only 4 Dr. enclosed

case @

79.00

No. 61 Sit-Straight Short Iron Legs

Oak @

85.00

No. 61 Sit-Straight American

Walnut @

89.00

No. w61 Wood Legs Sit Straight

Oak @

87.00

No. 87 Sit-Straight Short Iron Legs

Oak @

92.00

No. 87 Sit-Straight American

Walnut @

96.00

No. 73 Cabinet Oak @

102.00

No. 73 American Walnut @

106.00

No. 73 Mahogany @

112.00

12

D. M. Cours

1.00 each

3000

D. Hangers Imptd as per attached

ordered 3/24/25

5495

No. 61 Sit-Straight Oak, as an

Advertising free, concession

Advertising

300

P 2

P 4

S 5

S 6

500

P 21

P 23 1/2

S 2

P 28 1/2

S 17

P 30E

S 20

P 34E

500

P 33

W T 2Pc

P 36

Trim for

Dress

Course

1000

N 1

S 22 E

1000

N 3

S 23 E

S 24 E

Sched. 23 1/2 Form G92 50 Bks

1-25

Do not write in this space

Rec'd

Mar. 16 1925

CK. Dft. Mo. Ex. Mo.

Cy. Stamps

Rec'd by

Passed by

M 3/17

Entered by

Ack'd by

Do not write in above space

"Rotary styles 73, 83, 91, 61, 88, in American Walnut woodwork $ 2.00 net wholesale extra. Rotary styles 73, 83, 91, in Mahogany woodwork $ 5.00 net wholesale extra.

"Shipment of this order contingent upon strikes, fires, accidents of other causes beyond our control.

"No. 83 and 91 can be equipped with short cord vimco-light $ 3.00 net wholesale extra.

"Terms: Wholesale Trade, Discount Fifty (50%) per Cent. from Prices named herein.

"All machines on this order to be settled for by Trade Acceptance or Note due 9 from date of invoice. If cash is received within 30 days from date of invoice, a discount of $ 2.00 per machine will be allowed on machines charged at full price. Or if paid in 60 days, on same basis, $ 1.00 only discount per machine. Interest at the legal rate will be charged after 6 months from the date of invoice covering this purchase. Advertising machines free only upon payment of invoice according to terms.

"It is agreed that if the undersigned fails or neglects to settle any invoice by note, trade acceptance or cash, according to the terms thereof, within thirty days after maturity, or to pay any note or trade acceptance given according to its terms, then that the whole amount owing the White Sewing Machine Co., shall at once become due and payable without discount. This order is given subject to the approval of the White Sewing Machine Co., and if accepted and filled in full or in part, to be settled for at the price and terms above set forth. There is no understanding or agreement of any nature whatsoever between your Company and the undersigned as to these machines except such as is embraced in this written order which contains all of the terms and conditions upon which the same is given.

"[Signed]

F. J. Perrault.

"P. O. Address

Natchez, Miss.

"Price subject to change without notice.

"This order not subject to countermand."

The defendant pleaded the general issue, and also a special plea. In the special plea he alleged: That as a part of the same transaction in which the defendant executed the order and the promissory note sued on, and also as a part of the inducement therefor, the said plaintiff, White Sewing Machine Company by and through its several officers, agents, and employees, on or about the 12th day of March, 1925, entered into a certain contract and agreement with this defendant by which it was represented and agreed by the plaintiff that the said plaintiff, White Sewing Machine Company, in order to introduce its machines in the city of Natchez, Mississippi, would put on and conduct at the defendant's place of business in Natchez, Mississippi, an intensive demonstration and sales campaign of the machines of the plaintiff; that the defendant should order twelve sewing machines of and from the plaintiff in accordance with the order filed as an exhibit to the plaintiff's declaration and that said machines would be delivered by the plaintiff to the defendant according to the terms of the order, and that the plaintiff's representative, J. H. Ware, would personally conduct, with the assistants to be furnished by the White Sewing Machine Company, a demonstration and sales campaign as soon as certain machines to be ordered as aforesaid by the defendant were received; that the said J. H. Ware was a competent, experienced, and expert demonstration and sales campaign manager; and that it was represented that the defendant was to do nothing except distribute certain advertising matter and furnish the place for the conduction of the sale; that the entire demonstration and sales campaign would...