Smith Premier Typewriter Co v. Rowan Hardware Co

• Decision Date: 13 November 1906
• Citation: 55 S.E. 417,143 N.C. 97
• Court: North Carolina Supreme Court
• Parties: SMITH PREMIER TYPEWRITER CO. v. ROWAN HARDWARE CO.

55 S.E. 417

143 N.C. 97

SMITH PREMIER TYPEWRITER CO.

v.ROWAN HARDWARE CO.

Supreme Court of North Carolina.

Nov. 13, 1906.

1. Evidence—Parol Evidence—Contradicting Written Instrument.

The testimony of a buyer of a machine, admitting the written order therefor to be part of the contract, which establishes an additional stipulation resting in parol to the effect that he was entitled to a reduction from the purchase price for commissions on machines then sold or being sold, merely proves a method by which a part of the obligation might be paid, and does not contradict the written order.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2148.]

2. Same—Admissions.

A company gave an order for a machine. The president of the company testified that after the order was signed he called the agent of the seller and the agent of the company giving the order, and asked the agent of the seller to explain ambiguous stipulations, and that the agent then explained the order, and stated that the company should be allowed a specified sum as commissions on machines then sold or being sold. Held, that the evidence of the statement of the agent was not objectionable as varying the written order.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2148.]

3. Appeal—Erroneous Instructions—Harmless Error.

Where, in an action for the price of a machine, the jury found the existence of the verbal stipulations insisted on by the buyer, an error in an instruction imposing a qualification not required by law to make the verbal stipulations valid, was not prejudicial to the seller.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4056-4058.]

Appeal from Superior Court, Rowan County; Justice, Judge.

. Action by the Smith Premier Typewriter Company against the Rowan Hardware Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Civil action, tried on an appeal from a justice of the peace before his honor, Justice, judge, and a jury, at Rowan special term, 1905. Plaintiff sued on a written order given by defendant to plaintiff for a typewriter at the price of $102.50, and dated April 28, 1905; the trade having been negotiated through one B. W. Allen, who was at the time a traveling salesman, and agent of plaintiff. Defendant admitted having placed this order in writing signed by defendant, and averred by way of defense, that at the time the order was given, and as a part of the contract, the agent Allen, who made the trade, agreed for plaintiff that defendant, in part payment for the machine ordered, should have a credit, as agent of plaintiff, of $40, the commission on four other machines then sold, or being sold; three of them to other parties, and this one to be included in the number on which the commission should be allowed. And defendant, by answer, claiming this reduction of $40, on the price, made a formal tender of $62.50 and interest, the price of this machine, less the alleged credit. On the trial In superior court, the plaintiff offered in evidence the written order and rested. For the defendant S. A. Gregg being duly sworn, testified, in part, as follows: "That on April 28, 1905 [it being the time the original order was made for the typewriter] I was president of the Rowan Hardware Company, defendant. Mr. Allen was agent of the plaintiff. We gave him the order for the machine, and the machine was shipped to us from Richmond, Va. I did not hear the original contract, as it was made by Mr. Allen and Mr. Sossaman. After the order was signed and placed in Mr. Allen's hands, I called Mr. Allen and Mr. Sossaman over to my desk, and told Mr. Allen that I did not understand the contract and wanted him to explain it to me. Mr. Allen then showed me the order and said that we were to be allowed a credit of $40.00 on the same for four machines he had heretofore sold or was in the course of selling, which would leave a balance of $62.50 due on the note or order." Cross-examined: "I understood that we were only paying $62.50 for the machine. We did not especially need a machine at that time, but I thought if we could get this one cheap we had better take it." The issue was submitted as to the amount defendant owed the plaintiff. The case on appeal then proceeded as follows: "After his honor had charged the jury, the jury retired, and, after having been out two and one-half hours, returned and said they could not agree. Whereupon, his hon or asked them if there was any matter of law upon which he could instruct them. The jury, then, through their foreman, asked "whether they should be governed by the oral evidence or by the written contract. Whereupon, his honor instructed them: 'The written contract is the contract of the parties at the time, and unless you find that Allen was the general agent for the plaintiff and that Allen agreed, after the execution of the...