White Showers, Inc. v. Fischer

• Decision Date: 08 December 1936
• Docket Number: No. 65.,65.
• Citation: 270 N.W. 205,278 Mich. 32
• Parties: WHITE SHOWERS, Inc., v. FISCHER.
• Court: Michigan Supreme Court

278 Mich. 32

270 N.W. 205

WHITE SHOWERS, Inc.,

v.FISCHER.

No. 65.

Supreme Court of Michigan.

Dec. 8, 1936.

Action by White Showers, Incorporated, against Albert C. Fischer. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Emmet County; Victor D. Sprague, judge.

Argued before the Entire Bench, except POTTER, J.

Clink & Reuling, of East Jordan, for appellant.

Clyde Comstock, of Petoskey, for appellee.

BUSHNELL, Justice.

In reply to an inquiry from defendant, Albert C. Fischer, a resident of Chicago, Raymond R. White, president of plaintiff company, called him at his summer home, about 12 miles from Harbor Springs. Defendant was interested in procuring an irrigation system and had addressed a similar inquiry to another manufacturer described in the record as ‘The Skinner Irrigation Co.’ A representative of the Skinner Company had been there a day or so before and had obtained an order from Fischer; White was informed of this fact. It is defendant's claim that before signing a written order for the purchase of an irrigation system from plaintiff, it was agreed that the White order would be ineffective unless the Skinner order could be canceled.

White testified that the contract was signed by Fischer at 11 o'clock in the morning of June 20, 1935, and that he immediately left defendant's summer home and delivered a telegram for him at the telegraph office in Harbor Springs, from which place it was forwarded to Skinner. The record contains a copy of a telegram of cancellation addressed to Skinner and signed by Fischer, which was sent on the same day that defendant signed the White order.

The written order given White, details the materials required, provides that the price shall be $1,650, recites that a check for $825 is attached, and shows that the balance shall be due upon July 31, 1935. It also contains the following language: ‘This order covers all agreements and is * * * not subject to cancellation except with our consent and upon terms protecting us against loss.’

The Skinner Company replied by wire the same day that it was too late to cancel their order and informed defendant that shipment had already been made. At 4:59 p.m. that day defendant wired plaintiff: ‘Cancel order Skinner shipped goods yesterday stopping payment on check sorry.’

It appears from the testimony of White that after he had delivered the Fischer-Skinner telegram to the telegraph office at Harbor Springs, he went to the nearby city of Petoskey and about a quarter after 1 called his Detroit office, directing them to commence work upon the order; it further appears that plaintiff company did make shipment of part of the equipment that afternoon. The remainder of the supplies were shipped a few days later, delivery being refused by defendant.

The check given with the White order on June 20th was dated June 24th. Plaintiff says: ‘Mr. Fischer stated that the reason he was postdating the check was that it was necessary that he transfer additional funds to cover the check. That was the only reason he gave for postdating the check and that reason was acceptable to me. I was willing to accept the check as the down payment on the system.’ Fischer testified that White was informed about the Skinner order on the 19th and that later was told there was not any chance of getting an order because he, Fischer, was tied up with Skinner, etc. The following morning, when Fischer was persuaded to give White a ‘tentative’ order, he claims he asked White to incorporate this understanding in the written order and was informed that it was not necessary because the order would not be effective unless the Skinner cancellation was accomplished. Fischer denied any representations about the bank account or bank balance and insisted that his commercial account was more than sufficient to cover the check. He claims that it was dated three days ahead to enable him to determine whether he could secure a cancellation from Skinner. Defendant's statement of his account in the First National Bank of Chicago for the month of June, 1935, showing more than sufficient funds to cover the check, was received in evidence in support of this testimony.

Plaintiff's suit for damages suffered by reason of breach of its claimed contract with defendant was heard before the trial court sitting without a jury and resulted in a judgment for defendant. A number of questions are presented by the appeal, some of which are not essential to this decision; the controlling question is whether parol testimony can be introduced to show that the White order was not to become operative until and unless the Skinner order was cancelled. The condition precedent rule, which we believe applicable herein, was stated generally in Rothstein v. Weeks, 224 Mich. 548, 195 N.W. 49, 51:

‘The law is well settled that one who executes a contract may protect himself from liability by a distinct agreement that it shall not become operative, or recognized as delivered, until other parties execute it also, and parol proof of such agreement is not objectionable as tending to vary the terms of a written agreement, as it only goes to show that, whatever its terms, the instrument never had validity as a contract. Dikeman v. Arnold, supra [78 Mich. 455, 44 N.W. 407];Cleveland Refining Co. v. Dunning, 115 Mich. 238, 73 N.W. 239;Ada Dairy Ass'n v. Mears, 123 Mich. 470, 82 N.W. 258;Hodge v. Smith, 130 Wis. 326, 110 N.W. 192.’

Appellant admits the soundness of the rule, but contends that it does not apply to ‘a contract which on its face states that there is no condition resting in parol.’ The writing itself does not make this statement. We have heretofore quoted the exact language of the contract. The effect of the actual quotation is that if there be a contract, then the writing represents all that is contained in that contract.

It is sometimes difficult to make a clear distinction between an attempt to alter, vary, contradict, or add to a written agreement by parol, and a showing by oral testimony that a writing was never intended to bind the parties unless a condition precedent was fulfilled. No attempt was made made in the instant case to alter, vary, contradict, or add to the writing, but oral testimony was offered in support of the proposition that there never was a contract. The distinction is real and not merely academic. The case presents a situation in which there was manual delivery of a writing which embraced all the provisions of the agreement, if there was a contract; but it is insisted by defendant that whether the contract was to come into being and whether its delivery be legal and binding depended upon the fulfillment of a condition precedent. The written stipulation of the order which states ‘this covers all agreements' presupposes a binding contract inasmuch as only a binding contract could give life to the stipulation. Without such a contract, there is nothing to which the stipulation could be attached. It is an essential part of the contract, if there be one, and could only have force and effect after proof of the existence of the contract itself. It cannot...