Reid v. Diamond Plate-Glass Co.

• Decision Date: 08 February 1898
• Docket Number: 526.
• Citation: 85 F. 193
• Parties: REID v. DIAMOND PLATE-GLASS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

85 F. 193

REID v. DIAMOND PLATE-GLASS CO.

No. 526.

United States Court of Appeals, Sixth Circuit.

February 8, 1898

This is an action in assumpsit to recover a balance due on the purchase price of a quantity of plate glass sold and delivered by defendant in error to plaintiff in error. The contract of sale was in writing, duly executed April 19 1894, and was for 50,000 feet of plate glass, subsequently increased by written contract to 60,000 feet. The actual quantity delivered appears to have been 57,000 feet. The sale was for future delivery, and the time of delivery was by agreement extended on two separate dates, July 19, 1894, and October 19, 1894. Under the general issue, the defendant gave notice of the special defenses relied on. The defense, as stated, was that at the time of the execution of the original contract there was a parol agreement that, in case of a fall or reduction in the market price of glass before delivery was made, the defendant should have the benefit of such reduction, and that a like oral agreement was made on the occasion of each extension of time for delivery, and that before any delivery a reduction in prices was made, bringing them about 20 per cent. below the price as fixed in the written contract, and that credit should be allowed for such reduction in price. It was further insisted that, as an adjustment of the matter of prices, it was subsequently, on January 4, 1895, agreed between plaintiff in error and the agent of defendant in error that 50,000 feet of glass should be delivered and paid for at the contract price, and that an additional quantity of 50,000 feet should be delivered and paid for at the new or reduced price; making in all 100,000 feet, half under the old and half under the new contract, as it is called. This contract was not in writing. It is said that the defendant in error shipped the quantity of glass called for under the old contract, and refused to carry out the new contract of January 4, 1895, on account of which plaintiff in error was compelled to buy glass at a price above the reduced price on this additional 50,000 feet, to be furnished under the contract of January 4, 1895; and the amount of this difference is offered by way of set-off and recoupment as the damage sustained by the breach of the contract of January 4, 1895. The first shipment of glass was on January 4, 1895, the date on which the new or modified contract is claimed to have been made. The court, on objection, excluded the evidence offered to show a contemporaneous oral agreement for a reduction in the contract price, not contained in writing, and also excluded all oral evidence of the contract claimed to have been made January 4, 1895, but permitted the introduction of all evidence, oral or written, tending to show an agreement for reduction made in July or October, when the time for delivery was extended, and also admitted so much of the conversations or statements on January 4, 1895, as related to or tended to show an oral agreement on the dates of extensions, and instructed the jury, in case such oral agreement was found to have been made at the time of either or both extensions, to allow the defendant the benefit thereof, as a credit on the amount sued for; putting before the jury the figures at which the balance of the account would stand, both with and without such reduction or credit. There was a verdict and judgment against defendant for the full amount of the unpaid balance, according to the original contract price, and the case is brought up on writ of error.

Frederick W. Whiting, for plaintiff in error.

Henry M. Duffield, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

CLARK District Judge, after stating the case, .

Error is assigned on the court's ruling in excluding evidence offered to show that it was a part of the original contract that defendant was to have any reduction in prices before delivery, although this was not embraced in the writing. The Michigan statute of frauds contains two separate sections which affect the questions here presented,-- the one specifically, and the other generally. They are as follows:

'No contract for the sale of any goods, wares, or merchandise for the price of fifty dollars or more shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum of the bargain be made, and signed by the party to be charged thereby, or by some person thereunto by him duly authorized. ' 'The consideration of any contract, agreement or promise required by this chapter to be in writing, need not be expressed in the written contract, agreement or promise, or in any note or memorandum thereof, but may be proved by any other legal evidence.' 2 How.Ann.St. §§ 6186, 6189.

Section 6186 is substantially similar to section 17 of St. 29 Car. ii, now superseded, it appears, by the sale of goods act of 1893, which re-enacts and enlarges the original section. 2 Tayl.Ev. (9th Ed.) § 1020.

For the purpose of disposing of the question presented by the assignment of error just referred to, we are not concerned with the statute of frauds, further than to say that it could not be doubted, and is conceded, that the contract was one required by section 6186 of the Michigan statute to be in writing. It is to be further remarked that the contract was not only required to be, but was in fact, put in writing. The contract is complete in itself, clear and unambiguous in its terms and provisions, and undoubtedly represents the deliberate engagement of the parties. Apart from any particular question of the statute of frauds, there is an ancient rule of evidence, of wide application, resting upon substantially the same principle as the statute of frauds, which does not permit parol testimony to be received to contradict, vary, add to, or subtract from the terms of a valid written instrument. 2 Jones, Ev. 437, 438, 446; 1 Greenl.Ev. § 275; 2 Tayl.Ev. §§ 1132, 1133. The rule is laid down by the author of the work last cited as follows:

'Bearing the above principles in mind, the leading general rule respecting the admissibility of extrinsic evidence to affect what is in writing is that parol testimony cannot be received to contradict, vary, add to, or subtract from the terms of a valid written instrument. The common-law rule may be traced back to a remote antiquity. It is founded on the inconvenience that might result if matters in writing, made by advice and on consideration, and intended finally to embody the entire agreement between the parties, were liable to be controlled by what Lord Coke calls 'the uncertain testimony of slippery memory.' When parties have deliberately put their mutual engagements into writing, in language which imports a legal obligation, or, in other words, a complete contract, it is only reasonable to presume that they have introduced into the written instrument every material term and circumstance. Consequently all parol testimony of conversations held between the parties, or of declarations made by either of them, whether before or after or at the time of the completion of the contract, will be rejected, because such evidence, while deserving far less credit than the writing itself, would inevitably tend in many instances, to substitute a new and different contract for the one really agreed upon, and would thus, without any corresponding benefit, work infinite mischief and wrong. Apart from all considerations of convenience, positive enactment has imposed the same rule in several cases. It has, be requiring certain transactions to be evidenced by writing,-- as, for instance, wills, contracts within the statute of frauds, and the like,-- rigidly excluded all parol testimony tending to vary the terms contained in the written instrument. The statutory rule will perhaps be more strictly enforced than that which rests on the common law alone, because, in the former case, to relax the rule in any degree is, to the like extent, to repeal the particular act which renders the writing necessary. The term 'written instrument,' for this purpose, includes, not only records, deeds, wills, and other instruments required by statute or common law to be in writing, but every document which contains the terms of a contract between different parties, and is designed to be the repository and evidence of their final intentions.'

De Witt v. Berry, 134 U.S. 306, 10 Sup.Ct. 536, was a case in relation to a sale of merchandise, consisting of varnish, etc.; the contract being in writing, and in form similar to the one now in question. It was held in that case that where a contract of sale was in writing, and contained no warranty, parol evidence was not admissible to add a warranty, and, further, that parol evidence was not admissible to show a warranty inconsistent with the warranty contained in the contract. It was generally said that where parties have reduced their contract to writing, without any uncertainty as to the object or extent of the engagement, evidence of antecedent conversations between them in regard to it was inadmissible. Mr. Justice Lamar, giving the opinion of the court, said:

'In the case of The Reeside, 2 Summ. 567, Fed. Cas. No. 11,657, Mr. Justice Story said: 'I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori not in order to contradict them. An express contract of the parties is always admissible to supersede or vary or control a usage or custom, for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or

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