UPPER MISSISSIPPI TOWING CORPORATION v. Calmes

• Decision Date: 04 June 1947
• Docket Number: No. 11876.,11876.
• Citation: 162 F.2d 177
• Parties: UPPER MISSISSIPPI TOWING CORPORATION v. CALMES et al.
• Court: U.S. Court of Appeals — Fifth Circuit

162 F.2d 177 (1947)

UPPER MISSISSIPPI TOWING CORPORATION v. CALMES et al.

No. 11876.

Circuit Court of Appeals, Fifth Circuit.

June 4, 1947.

Walter Carroll and Benjamin W. Yancey, both of New Orleans, La., and Harold G. Cant, of Minneapolis, Minn., for appellant.

Nicholas Callan, M. A. Grace and Edwin H. Grace, all of New Orleans, La., for appellees.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

Alleging for a first cause of action that defendants had sold it a Diesel engine and equipment for installation in plaintiff's new tow boat Minnesota Husky, which had failed to perform as agreed, and for a second cause of action that defendants had undertaken, but had failed, to remedy the conditions which their breach of contract had caused, causing plaintiff additional damages, plaintiff sued for large sums as consequential damages.¹ As finally admitted, supplemented and amplified, the complaint alleged that, while the parties had gone into writing² in connection with the purchase of the engine, this writing was not the whole contract, but that the defendants had additionally and independently made oral warranties as to the performance of the engine and orally agreed "to furnish all proper and necessary calculations, information, and instruments for the proper installation and application of the engine, shafting, and propeller"; and that these agreements had been breached and defendants had become liable for the damages their breach had caused.

The gist of the second cause of action, when all pleading had come to an end, was that some time after the original installation of the engine, the defendants, in an effort to correct the original faulty and improper installation and application, agreed to change the propeller shaft, the intermediate shaft, and the propeller, and the Husky was delivered to them at New Orleans for that purpose; that the new installation was wholly useless and valueless in the operation of the vessel, and plaintiff suffered damages in the sum of $5,695 for repairs and replacements and $43,857.45 loss from lay up time.

The district judge agreeing with defendants that the suit was one in effect seeking by parol to add to, vary, and contradict the terms of a complete and integrated written contract, dismissed it.

Appellant is here insisting that this is to misapprehend his suit; that his first cause of action is a suit on an independent oral contract; that the terms of the written contract make it clear that the matters the oral contract deals with were not intended to be, and were not, dealt with in the writing, and, therefore, the writing cannot be conceived of as completely constituting the contract.

As to its second cause of action, it insists that this is and turns on an independent and separate oral agreement entered into long after the writing was made, and, therefore, it cannot be said to vary or contradict the writing.

Appellees, as to the first cause of action, insist that appellant is simply in the position of all those in the many cases dealing with efforts to avoid the parol evidence rule, who, finding that their written contracts do not contain provisions supporting their claims, undertake, under the guise of independent agreements, to import them by parol into completely integrated written contracts.

As to the second cause of action, appellees point out that it is quite plain from the complaint that this is no cause of action at all, that there was no consideration for the agreement on which this claim for damages is based, for all that is pleaded is what occurred in connection with and as a part of an effort on the part of the seller to carry out the obligations of the original agreement by substituting a new propeller for the one of which the purchaser complained.

We...