Albert Mackie & Co. v. S. S. Dale & Sons

84 So. 453 | Miss. | 1920

Stevens, J.,

delivered the opinion of the court.

This is an action for damages instituted by appellant company for the alleged breach of a certain contract in writing for the ¡purchase of six carloads of Irish potatoes,1 of four hundred bushels each, at two dollars and thirty-five cents per bushel. The declaration charged that appellee failed and refused to deliver any of the six cars, and as a consequence plaintiff was compelled to go into the open market and bu¡y¡ potatoes to supply the plaintiff’s contracts, all at an increased price and to the total damage to plaintiff of nine hundred and sixty dollars. To this declaration appellee interposed a plea of general issue and four special pleas.

Without setting out the material averments of either one of said special pleas, it may be said generally that all the pleas set up a subsequent parol agreement whereby plaintiff agreed to accept and the defendant agreed to deliver only three carloads instead of six carloads; that the defendant, pursuant to the verbal agreement, offered to perform, and plaintiff declined to accept the three cars as performance. It appears from the facts in record that about May 17, 1917, there were negotiations by letters and telegrams, and the original contract was concluded. By the terms of the original contract appellant was to inspect and grade the potatoes and accept or reject them at appellee’s place of business or shipping point. Appellant company is a corporation domiciled at Prentiss, Miss., and it would appear that the parties contemplated that appellee expected to, buy Irish potatoes from the farmers or producers in and about Prentiss and deliver them properly sacked and on board the cars at Prentiss. About four days after the contract was made Mr. John Dale, for appellee company, ascertained that in his judgment the potato crop1 would be short, and that his company most probably would bo unable to fill its contract by June 10th, as agreed. He thereupon called the manager of appellant’s produce department in New Orleans over long-distance telephone and stated his inability to deliver six oars, and ' the parties thereupon over the telephone, according to his testimony, agreed that appellee would deliver and that appellant would accept three cars instead of the six-cars in full satisfaction or performance of the contract. The agreement over the telephone was denied by appellant, and this issue of fact wasi submitted to Hie jury, under proper instructions. The testimony further tends to show that appellee secured and offered to ship1 three carloads in accordance with the parol agreement, but that appellant declined to send an inspector or to receive the three carloads. There was a verdict and judgment for the defendant.

The main point relied upon by counsel for appellant for a reversal of this judgment is the contention that the original contract sued upon is within the provisions of section 4779, Code of 1906 (section 3121, Hemingway’s Code); that appellant sued upon the original contract in writing, and is entitled to recover for its breach unless the defendant can show an alteration or modification in writing.

It is argued that appellee,5 as defendant, is in the position of pleading a new agreement, and that, unless this new agreement is in writing, it violates the statute of frauds and! is void even as a defense. It is also contended that there is no consideration for the alleged new agreement.

Without prolonged discussion, We aré of the opinion that the case at bar is withiit the riiie announced by this court in Lee v. Hawks, 68 Miss. 669, 9 So. 828, 13 L. R. A. 633, wherein our court, by Woods, J., said:

“An action may not be maintained, in oases within the statute,'upon a contract not in writing; but a defense may be made by showing an executed parol agreement waiving or annulling a particular provision of the written contract. The subject is not free from difficulty, and the discussions of text-writers, and the'Opinions of courts in reported cases, are full of subtle distinctions and refinements; nor is the current of authority clearly bent in any direction. The views briefly advanced hereinbefore are Supported by some excellent authorities, and are agreeable to reason and justice. Benjamin, in his admirable work on Sales, p. 229, states the rule with his usual clearness: ‘Parol evidence to pirove, not a substituted contract,, but the assent of the defendant to a substituted mode of performance of the original contract, when that performance is completed, is admissible.’ ”

The principle thus announced is necessarily involved in the present proceeding. It is said in Eeed on the Statute of Frauds, vol. 2,' par. 497: “A subsequent change of a contract can be shown orally! to defeat recovery on the original agreement. ... A fortiori an entire rescission of a contract is provable by parol by way of defense. ’ ’

Many authorities can be found supporting this general statement, while some few may deny the proposition. In the case at bar the party relying upon the subsequent parol agreement is purely on the defensive. Appellee is not seeldng to compel-performance, and is asking no affirmative relief at the hands of the court. The evidence which was objected to was admissible to show performance of the original written contract. There is no serious contention that appellee did not in fact secure three carloads of potatoes and offer to ship them in accordance with all the terms of the original written contract. At the time appellant refused to accept the three cars it was impossible, according to the testimony, for appellee then to secure the other three cars. Its failure to secure the three cars is justified by the parol understanding. There is much authority to the effect that a strict performance of a written contract within the statute of frauds may be waived by a parol understanding or by words and acts inconsistent -with an intention to require performance where the other party has been misled or kept from performing. It has been frequently stated that the statute of frauds may not be used to perpetrate a fraud. Smiley v. Barker, 83 Fed. 684; 28 C. C. A. 9; Eeed on Statute of Frauds, vol. 2, par. 492.

The general rule that a contract required to be in writing cannot be altered or modified except by agreement in. writing may be conceded. It is particularly to be noted in the present case that there is no effort to change, alter, or modify any of the terms of the contract as to quality of potato, the price, or time and place of performance. The simple contention is made that the purchaser agreed to accept one-half of the property contracted to be delivered and waive performance as to the other half. It is immaterial whether this action be termed a waiver, modification, or release. The parties acted upon the parol agreement, and, if the testimony on behalf of appellee be true, it would be very inequitable to award damages in this case.

Ethridge, J., dissents.