United States Gypsum Co. v. Shields

• Decision Date: 27 November 1907
• Citation: 106 S.W. 724
• Parties: UNITED STATES GYPSUM CO. v. SHIELDS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

106 S.W. 724

UNITED STATES GYPSUM CO. v. SHIELDS.^*

Court of Civil Appeals of Texas.

November 27, 1907.

Rehearing Denied January 8, 1908.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by the United States Gypsum Company against P. T. Shields. Judgment for defendant. Plaintiff appeals. Affirmed.

Keller & Keller, for appellant. Ogden, Brooks & Napier, for appellee.

NEILL, J.

This suit was brought by appellant against the appellee to recover $1,345.70 damages, alleged to have accrued by reason of the failure and refusal of the appellee to accept 2,796 barrels of adamant plaster ordered by him from appellant under a written contract of sale dated June 18, 1904. The defendant pleaded that he was induced to sign the contract sued on by false and fraudulent representations, which were material, made him by the plaintiff's agent who procured the alleged contract. The case was tried before a jury, which resulted in a verdict in favor of the defendant.

Conclusions of Fact.

As an inducement for the defendant to enter into the contract sued upon, W. F. Watson, the agent and representative of plaintiff, represented to him that he had seen the quartermaster in charge of constructing certain buildings for the United States at Ft. Sam Houston, and that he had been informed by the quartermaster that the material described in the contract would be used in all buildings then under contract of construction for the government at that place; that relying on said representations, and believing them to be true, the defendant made the order through said agent for said material, which was represented by Watson to be the amount necessary to be used in the buildings which defendant was then under contract with the government to build at Ft. Sam Houston; that the representations so made by plaintiff's agent were false, none of the contractors for the erection of such buildings being required to use such material in their construction; that such representations were material, and fraudulently made, and induced defendant to make said order, but for which it would not have been given, for the material was worthless to defendant, in the absence of a requirement to use it in the buildings he was under contract to construct at Ft. Sam Houston.

Conclusions of Law.

1. The first, second, and third assignments of error complain of the court's admitting over the plaintiff's objections certain testimony of the defendant as to what was said in a certain conversation between him and plaintiff's agent (Watson) just prior to the time the contract sued upon was signed, which testimony tended to show that Watson, for the purpose of inducing defendant to enter into the contract, represented to him that he had seen the quartermaster in charge of the construction of buildings then being erected by the United States at Ft. Sam Houston, and had been informed by him that the material embraced in the contract would be used in all buildings then under construction at that place, and that defendant relied upon such representations and was induced thereby to sign the contract sued on. It is contended, under these assignments, that it was error to admit such testimony, because (1) it was immaterial and irrelevant, in that the representations testified to were made prior to signing the contract, and therefore merged in the writing; (2) the testimony was an attempt to change or vary the terms of a written contract, which could not be done by parol evidence; and (3) the contract upon its face bears the following stipulation: "It is agreed that this written order and printed terms hereon constitute the entire contract between the parties, and there are no verbal statements or agreements varying the same." These assignments are followed in appellant's brief by propositions of law so elementary that no one can gainsay any of them. The gist of them is that parol evidence is inadmissible to vary the terms of a written contract. This rule, however, has no application to extrinsic evidence, when used to attack the validity of a contract, as, in this case, by showing fraud in its inception. If a party were denied the right to show facts which prevent a writing from constituting a contract, such a writing would be free from all defenses, and outside of all rules which determine the validity of contracts. Parsons on Contracts (9th Ed.) 708; Barrie v. Miller, 104 Ga. 312, 30 S. E. 840, 69 Am. St. Rep. 171; Howie v. Platt, 83 Miss. 15, 35 South. 216. The evidence objected to was not introduced for the purpose of varying the terms of the writing sued upon, which it did not tend to do, but to the end of showing that defendant was induced to sign the paper by the fraudulent representations of the plaintiff. On this issue it was clearly admissible.

2. The contract, the admission of which is complained of by the fourth assignment of error, was executed at the same time as the one sued on, was a part of the same transaction, and was properly admitted, in connection with other testimony, as evidence tending to show that the defendant was induced to sign the instrument sued upon by fraudulent representation of plaintiff's agent.

3. If, as is alleged by defendant in his answer, the plaintiff falsely represented to defendant that all contractors who had contracts to construct buildings for the government at Ft. Sam Houston would be compelled to use the kind of material described in the writing sued on, and such representation was material and induced defendant to execute such contract, testimony that such material was not used by such contractors in the buildings was admissible as tending to prove such allegations. We, therefore, overrule plaintiff's fifth and sixth assignments of error, which complain of the introduction of such testimony.

4. The seventh assignment of error, which is submitted in appellant's brief as a proposition, is as follows: "The court erred in allowing defendant as a witness for himself, when recalled, to testify as follows: `Q. Well, I will put it in this form: If you had known that the quartermaster captain in charge had not told Mr. Watson that he would require his material, the gypsum material, to be used on all of the buildings, would you have entered into an agreement or would you have given this order, I mean? A. I certainly would not'—because it assumes that...