Tufts v. J. Greenewald & Co

• Decision Date: 08 April 1889
• Citation: 6 So. 156,66 Miss. 360
• Parties: JAMES W. TUFTS v. J. GREENEWALD & Co
• Court: Mississippi Supreme Court

6 So. 156

66 Miss. 360

JAMES W. TUFTS v. J. GREENEWALD & Co

Supreme Court of Mississippi

April 8, 1889

April 1889

APPEAL from the circuit court of Washington county, HON. J. H. WYNN Judge.

On the 15th April, 1887, defendants purchased from plaintiff's agent the soda water apparatus, for the value of which this suit was instituted. The contract of purchase was in writing in the form of an order for the apparatus, signed by defendants, J. Greenewald & Co. It directed plaintiff to forward the apparatus, and promised, upon receipt of bill of lading therefor, to execute installment notes for the price agreed to be paid, the title of the property to remain in plaintiff until payment was completed. Plaintiff lived in Boston, Mass., from which city the apparatus was to be transported over the "Star Union line, soon as possible." The articles were shipped on May 27, and plaintiff testified that there was no unnecessary delay; that the order was received when the season for manufacturing and supplying soda fountains was at its highest; and that it ordinarily required at that season four weeks or more to fill an order; that there were no shipping instructions except that mentioned in the order to ship as "soon as possible," and that this had been done.

The defendant, J. L. Greenewald, testified that the contract for the purchase of said apparatus was made in Greenville Mississippi, with an agent of the plaintiff; that at the time of the purchase the agent stated that plaintiff had the apparatus in stock, and that he could forward it in time for the opening of the season for selling soda water, viz.: May 15. That the agent further stated that it could be forwarded in time to permit defendants to use it at least a month before the maturity of the first installment note on June 1 that it was not shipped until May 27, and reached Greenville about June 10, after defendants had written a letter to plaintiff countermanding the order.

The plaintiff objected to the testimony as to the representations of the agent that the apparatus was in stock, and that it could be promptly shipped, because such testimony would vary the written contract, but the court overruled the objection, and held that contemporaneous statements by the agent as to the time in which the apparatus could be forwarded were admissible.

On the foregoing state of facts a peremptory instruction was given by the court in favor of the defendants, and there was verdict and judgment accordingly; and from the judgment plaintiff appealed, and he assigns for error the action of the court in permitting evidence in behalf of defendants of verbal representations made by the agent of plaintiff at the time of sale of the apparatus.

Affirmed.

Griffin & Thomas, for appellant.

The contract directed the plaintiff to forward the apparatus by Star Union line as "soon as possible." We contend that the testimony of Greenewald as to statements by the agent as to when he could ship it was improper and incompetent because it varied the written contract. To ship as "soon as possible" of course meant as soon as we or any other concern in this country engaged in a similar business, under the same circumstances, could do. The testimony of Greenewald would make the agreement one to ship by May 1 or May 15 instead of as soon as possible. The court declined to permit the witness to testify that the agent said he would ship, but allowed him to testify that he said he could ship it by May 1. As a matter of fact, the legal effect is the same. The word "would" could cause no greater variance in the terms of the contract than the word "could."

Such testimony cannot be said to be of the res gestae of the contract, because it is not intimated that the contract had not been signed up when the conversation took place.

Plaintiff's proof shows that he complied with the contract and shipped as soon as possible; that there was no delay in shipping; the goods were shipped with the usual promptness, and only such delay as was necessary occurred. The defense did not prove that plaintiff could have shipped any sooner.

We find the words "as soon as possible" construed nowhere but in Benjamin on Sales, p. 641. In the case of Atwater v Emery, there cited, the agreement of a manufacturer to deliver goods as soon as possible was construed to mean as soon as the vendor could with reference to his ability to furnish the articles, consistently with the execution of prior orders. An order for "iron...