Columbia Milling Co. v. Russell Co.

42 So. 233 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court.

On the facts presented by this case, it was error in the trial court to permit parol proof to go to the jury of promises made by the appellant to do certain things not contracted to be done in the written contract. This testimony could have been admitted only for the purpose of showing that the contract was procured by fraud, and, when appellee accepted the flour after making the written contract, it waived whatever right it may have had to show that it was induced to make the contract by representations of appellee not embodied in the writing. It cannot accept the goods under the written contract and, when sued for the price agreed to be paid, reduce that price by showing that appellee agreed to do something else not mentioned in the contract. To permit this to be done would be to add a new term to the written contract by parol testimony, and then to allow a recovery for a breach of the term thus added, and not mentioned in the writing as part of the contract. The case of Howie v. Platt, 83 Miss., 15; 35 South. Rep., 216, is not in point here. In that case the purchaser defended on the ground that the contract was procured by fraud, and immediately countermanded the order for the goods as soon as he discovered that the agent selling the goods had not embodied in the written contract the promises that he had made. Wren v. Hoffman, 41 Miss., 616; Cocke v. Blackburn, 58 Miss., 537; Baum v. Lynn, 72 Miss., 932 (s.c., 18 South. Rep., 428); 30 L. R. A., 441; Drug Co. v. Mercantile Co., 86 Miss., 423 (s.c., 38 South. Rep., 209).

Lei the judgment be reversed and cause remanded.