Quincy Johnston, Inc. v. Wilson, 38224

• Decision Date: 10 February 1959
• Docket Number: No. 38224,38224
• Citation: 358 P.2d 205
• Parties: QUINCY JOHNSTON, INC., a corporation, Plaintiff in Error, v. Ira WILSON, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 205

358 P.2d 205

1959 OK 14

QUINCY JOHNSTON, INC., a corporation, Plaintiff in Error, v. Ira WILSON, Defendant in Error.

No. 38224.

Supreme Court of Oklahoma.

Feb. 10, 1959.

Rehearing Denied April 19, 1960.

Application for Leave to File Second Petition for Rehearing

Denied and Dissenting Opinion Filed Jan. 10, 1961.

Syllabus by the Court

1.--The execution of a contract in writing supersedes all the oral negotiations or stipulations concerning the same matter which preceded or accompanied the execution of the written instrument.

2.--Parol evidence which is inconsistent with or repugnant to the written agreement of the parties is not admissible in evidence.

3.--Where parties have made a contract for the purchase of personal property, the purchase price of which is not paid in advance, to recover special damages for failure to deliver the property purchased, in addition to the excess of the value of the property to the buyer over the amount which would have been due to the seller under the agreement, the purchaser must prove that such special damage can reasonably be said to have been in contemplation of both parties at the time they made the contract.

Appeal from the District Court of Woodward County; F. B. H. Spellman, Judge.

Action on an account. From a judgment for defendant on his cross-petition for damages, plaintiff appeals. Reversed with directions.

Walter H. Thomas, Woodward, for plaintiff in error.

Bryan Billings, Woodward, for defendant in error.

PER CURIAM.

The parties to this action appear here in the same order as in the trial court and we shall continue to refer to them by their trial court designation.

Plaintiff brought this action to recover on an open account. Defendant answered by admitting the correctness of the account pleaded by plaintiff but alleging a set-off more than sufficient to satisfy the debt. Defendant also cross-petitioned for damages arising out of the failure of plaintiff to fulfill a contractual obligation. From a judgment on a jury verdict in defendant's favor for damages, plaintiff appeals.

In his answer, after admitting the debt of $993.97 sued for by plaintiff, defendant alleged that in February, 1955, plaintiff orally agreed to sell him a new truck and give him a trade-in allowance of $2,500 for his used truck; that plaintiff failed to deliver to him the new truck; that thereafter the parties orally agreed on the purchase by defendant of a new automobile on which plaintiff agreed to allow a $1,500 trade-in plus $1,000 in trade at the business in satisfaction of the prior allowance for defendant's used truck; that this credit in trade at plaintiff's business fully satisfied the items of the open account subsequently ordered by defendant and for which the action was brought. For his cross-petition, defendant realleged the agreement of plaintiff to sell him a truck and deliver it within 60 days, and the delivery to plaintiff by defendant of his used truck as part performance of his part of the bargain, and alleged further that his business was buying, selling, and hauling livestock in which business he used his truck and for which he had purchased the new truck; that plaintiff had failed to deliver the new truck; and, that defendant lost his profits of $300 per month which he could have earned from the operation of the truck during the time plaintiff failed to deliver him the new truck he had purchased. Plaintiff denied the oral contract alleged by defendant and pleaded a written truck purchase agreement which provided for 'later delivery' of the new truck and a trade-in allowance of $2,000 with a provision for defendant to 'change to a cheaper truck by our adjusting' the trade-in allowance. Plaintiff also pleaded the contract of purchase of the new automobile, a less expensive vehicle than the truck, as a compromise settlement and satisfaction of the former purchase agreement for the truck, and that the new agreement, evidenced by a written conditional sales agreement, allowed only $1,500 credit for defendant's used truck. The answer to the cross-petition realleged the matters of plaintiff's reply to defendant's answer in addition to a general and special denial of defendant's claim. Defendant's reply to these pleadings specifically denied that the written contract for the purchase of the truck contained the $2,000 trade-in allowance, the provision for '* * * later delivery and we will place order soon as notified * * *', and the provision for a change in the vehicle ordered with an adjustment of the trade-in allowance.

The evidence of each party was substantially as alleged in their pleadings. Defendant testified that he was in the business of buying, selling, and hauling livestock; that he had operated three trucks; that after surrendering possession of his used truck involved in this transaction he continued to operate two trucks; that he was to receive $2,500 as a trade-in allowance on the new truck; that he made net profits of $500 to $600 a month from operation of the used truck traded to plaintiff; and, that he signed the conditional sales contract for the purchase of the new automobile. His wife, who actually negotiated the new car transaction, testified that the agreement with plaintiff was that they were to receive $1,500 trade-in allowance on the new car and $1,000 credit in trade at plaintiff's business to satisfy the balance due them for the used truck traded to plaintiff in the truck agreement several months before. There was no evidence that defendant ever tried to purchase another truck when he learned plaintiff could not deliver the one ordered from him.

Plaintiff's president testified that he knew defendant's business; that defendant had told him he did not need the new truck immediately because of the slack in the cattle business which existed at that time; that when, several months later, defendant did desire delivery of the truck the manufacturer was tied up in a strike and plaintiff was unable to find the truck specified in defendant's order (this contingency was covered by the provisions of the truck order agreement); that he sold defendant and his wife a new car instead of the truck; and, that on this trade he agreed to only $1,500 as a trade-in allowance for the used truck and did not promise and additional credit for trade. After the court overruled plaintiff's demurrer and motion for an instructed verdict at the conclusion of the evidence, the case was submitted to the jury, under instructions to which plaintiff excepted, and the jury returned a verdict for defendant for $300 on which judgment was entered.

We find it necessary to discuss only two of the propositions of error urged. Plaintiff contends that the court erred in admitting parol evidence of an agreement to allow defendant a credit of $1,000 at plaintiff's business in addition to the $1,500 trade-in allowance contained in the written conditional sales agreement. That contract contained among its provisions concerning the terms of sale, in addition to the 'trade-in allowance', the following:

6. 'No representations, promises or statements have been made by seller unless endorsed hereon in writing.'

That provision is unequivocal. The parol evidence of an additional promise to give defendant a credit in trade at the business was inconsistent with it. There was no allegation or proof of fraud or mistake in the execution of the written contract. Parol evidence contradictory of the written agreement is not admissible, and its introduction in this case was contrary to our statute which establishes the commonly denominated 'parol evidence rule.' 15 O.S.1951 § 137; Moore v. Emerson, Okl., 325 P.2d 437; Butler v. Conyel, 177 Okl. 424, 60 P.2d 749.

Plaintiff also urged error by the court in failing to sustain its demurrer to the evidence and motion for directed verdict against the evidence offered in support of defendant's cross-petition. This contention likewise must be sustained. The cause of action in the cross-petition was for loss of anticipated profits. Our statute provides that damage for the failure of the seller to deliver personal property where the price has not been fully paid in advance '* * * is deemed to be the excess, if any, of the value of the property to the buyer, over the amount which would have been due to the seller under the contract if it had been fulfilled.' 23 O.S.1951 § 29; Richardson v. Lawler, 204 Okl. 484, 231 P.2d 671. Defendant made no effort to plead or prove damage according to this section. Thus the only damage sought by defendant is special damage, and it must be pleaded and proved that damage of this nature was within the contemplation of the parties at the time they executed the agreement before such damage is a proper item to be recovered. Green v. Coleman-Nelson Corp., 115 Okl. 144, 242 P. 196. Defendant did neither. The utmost that can be derived from this evidence is that he was engaged in the business of hauling livestock; that he operated three trucks, and that plaintiff knew of this. In an early case, Mr. Justice Holmes succinctly disposed of a similar situation for the Federal Supreme Court in Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 540, 23 S.Ct. 754, 756, 47 L.Ed. 1171,...