Brenard Mfg. Co. v. McCarty Drug Co.

101 So. 759 | Ala. | 1924

The contract of the parties on which the notes were based, and the consideration therefor, contained, among other things, the following:

"The Brenard Manufacturing Company, Iowa City, Iowa — Gentlemen: Upon your approval of this order and agency contract to deliver to me at your earliest convenience, f. o. b. factory or distributing point, the articles mentioned below, in payment for which I herewith hand you my notes, aggregating $374.64, which you are to cancel and return to me, if agreement is not approved by you. * * * Unusual delays from strikes, fires, accidents, or other causes beyond our control, shall extend to this agreement for a like period. * * *

"McCarty Drug Co.

"By C. G. McCarty, Authorized Buyer."

Plaintiff should have been permitted to propound, and to have had answered, interrogatories 16 and 17.

The sustaining of defendants' objections to said interrogatories was without error. Plaintiff's witness was permitted to testify:

"We have been ready at all times since the approval of the printed order to deliver to the defendant all the goods bought by the defendant and named in the said printed order, Exhibit A, at our earliest convenience."

This embraced the questions of fact called for by said interrogatories under the written contract of the parties.

The question (twenty-third), "Has plaintiff, in any way, ever failed to do anything required by said written order?" called for the inference or finding of fact by the witness that the jury should draw or find. This was the issue being tried.

The contract of the parties was evidenced by the writing in question. It was a material inquiry whether the plaintiff, before delivery was completed, wrote defendants that the sales price of the instrument had been advanced beyond that named in the contract. This parol testimony was not varying the terms of the writing, but tended to shed light upon the issue of breach vel non of the contract, and of plaintiff's bond to defendants. This ruling is not contrary to the well-established rules (and declared exceptions thereto) as to varying written contracts by parol evidence. Formby v. Williams, 203 Ala. 14, 81 So. 682; Jones v. First Nat. Bank, 206 Ala. 203, 89 So. 437; White v. Kahn, 103 Ala. 308, 15 So. 595.

Defendants were permitted to testify, against due objection of plaintiff, that the agent of plaintiff, who solicited the order and made the written contract with defendants, "* * * stated to me [the defendant McCarty] that I should get the machines at their earliest convenience, to be delivered in 15 days." Had the contract specified the time for delivery (Dowling-Martin Gro. Co. v. J. C. Lysle Mill. Co., 203 Ala. 491,83 So. 486) the evidence called for would have violated the well-recognized rule preventing the varying by parol of the express terms of the written contract. However, the contract of the parties was that plaintiff would deliver at their "earliest convenience"; a reasonable time, under the circumstances of the case. Dowling-Martin Gro. Co. v. J. C. Lysle Mill. Co., supra. It was material and important for the jury to know the circumstances of the case and how the parties understood this indefinite term of the contract. It was dependent upon the disputed facts, was a question of fact for the jury, and resort was properly had to parol testimony. Dowling-Martin Gro. Co. v. J. C. Lysle Mill. Co., supra; Smith v. Webb, 176 Ala. 596, 599,600, 58 So. 913, 40 L.R.A. (N.S.) 1191.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.