J. B. Colt Co. v. Hinton

109 So. 856 | Miss. | 1926

^* Corpus Juris-Cyc References: Evidence, 22CJ, p. 1253, n. 36; General rule that parol evidence not admissible to vary, add to or alter a written contract, see note in 17 L.R.A. 270; 10 R.C.L. 1033; 4 R.C.L. Supp. 687; 5 R.C.L. Supp. 583. Appellant, J.B. Colt Company, sued appellee upon a promissory note taken for the purchase money of a lighting plant bought from the Colt Company under a contract.

This contract for the purchase of said lighting plant provided that in consideration "of the acceptance by the company of this order the undersigned agrees to pay the company two hundred forty-three dollars and sixty-five cents twelve months from date of acceptance of this order. The purchaser agrees to execute and deliver to the company, within ninety days from date of acceptance of this order, a promissory note for the amount aforesaid, and payable in twelve months from date of acceptance of this order, without interest." It then contains a warranty as follows:

"It is agreed that in accepting this order the company warrants the apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship; . . . it being understood that this instrument, upon such acceptance, covers all of the agreements between the purchaser and the company, and that no agent or representative of the company has made any statements, verbal or written, modifying or adding to the terms and conditions herein set forth. It is further understood that upon the acceptance of this order the contract so made cannot be altered or modified by any agent of the company or in any manner, except by agreement in writing between the purchaser and the company acting by one of its officers."

Defendant, by plea, undertook to set forth oral agreements with an agent, and gave evidence that the note was given in renewal of the contract obligation guaranteeing the plant to operate, and upon certain statements made by such alleged agent to procure said note. It is further alleged that the light plant was defective both in material and workmanship, without setting forth at large what the defects consisted of. It is further set forth in the plea that the person taking said renewal note solemnly promised, as an inducement to procure said renewal, that plaintiff would repair at its own expense, and, when so repaired, it would be a perfect light plant as originally recommended, and so fraudulently secured the execution of the renewal note sued on.

The defendant testified, over objection, to the matter set forth in the plea that the light plant was worthless as a lighting plant, and that he had offered to return it to the company.

The court gave the defendant, among others, the following instruction:

"The court instructs the jury for the defendant that, if you believe from the evidence that the note sued on is a renewal, and the consideration was, and is, the light plant shown and mentioned in the several exhibits, and if you further believe that the plaintiff's agent agreed to put the light plant in the condition as originally promised, and if you believe that said promise was the only consideration of the note herein sued on, and if you further believe from the evidence that said light plant is useless and valueless for the purpose of a lighting plant, then you will find for the defendant."

We are of opinion that it was error to give this instruction, and that this case is controlled by Colt v. Odom, 136 Miss. 651, 101 So. 853.

Reversed and remanded.