On July 4, 1962, Jоhn H. Freeman, Jr. signed a printed form contract, witnessed by representatives of the Continental Gin Co., by which Freeman agreed to purchase from Continental a substantial amount of machinery and equipment with which to replace an existing cotton gin. The contract was filled out before it was signed, except that it did not then list in detail the items to be purchased by Freeman nor the items he was trading in on the purchase. At the time the contract was signed, it called for the purchase of “Partial 3-119 Saw Ginning Outfit consisting of the following — .” An itemized list of the machinery and *462 equipment required had been furnished Freeman previously, and it was examined by him and by the rеpresentatives of Continental at the time the contract was signed. Thereafter the contract was sent to Continental, the list of property to be purchased and to be traded in were inserted, and the contract was formally accepted by Continental on July 26, 1962, with certain modifications contained in Continental’s letter of that date to Freeman by which Freeman’s copy of the contract was returned. The contract as approved and accepted by Continental was received and accepted by Freeman on July 30. The machinery and equipment called for by the contract were dеlivered to Freeman in the next two months. Freeman has never paid for this equipment.
On April 10, 1964, Continental sued Freeman in the court below. Count I of the complaint was a claim for the purchase price, together with interest and, as provided by the contract, a reasonable attorneys’ fee. Count II was a claim on an open account for miscellaneous parts and repair items sold to Freeman after the contract just described.
Freeman’s deposition gives a very different picture of this transaction. According to Freeman, he had had several conversations with Vandergriff, the president of Continental Vandergriff told him that he understood Freeman was thinking about putting in a new gin and that he, Vandergriff, had some new ideas that had not been tried out before and that he would like to try out on an experimental basis. Vandergriff told Freeman that if he would let these ideas be tried in his new gin, Continental would make it work or come and do what was necessary, and if they could not do that, they would take it back. Vandergriff also told Freeman that the new gin would be in operation in time for the 1962 ginning season and that a representative of Continental would follow the job closely. On the basis of these assurances, Freeman signed the July 4 contract. Shortly thereafter, an employee of Continental arrived and dismantled Freeman’s former gin and prepared to build the new one. This person proved to be incompetent, and Continental later took him off the job and replaced him with another employee. The equipment for the new gin was slow in arriving, and much of it was defective in one way or another. Continental did not provide proper engineering plans for the new gin, as it had promised to do. Because of this, the new gin did not work at all until the 1962 ginning season was virtually over; and though it is still in use by Freeman, it has never worked properly.
By answer and counterclaim, Freeman asserted that Continental had breached the agreement between them by failing to construct the facility in the time and manner it had agreed. Freeman denied that he was liable to Continental, and claimed substantial damages he had allegedly suffered because of the breaches by Continental. Each party moved for summary judgment on the basis of Freeman’s deposition.
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The trial court denied Freeman’s motion. It granted Continental’s motion as to Count I, reserving for a later hearing the amount of the attorneys’ fee to which Continental was entitled. It also granted Continental’s motion as to Count II to the extent that Freeman had not disputed certain items, resеrving for later hearing items claimed in the open account about which there was dispute. The basis for these rulings by the court was set forth by it in a thorough opinion.
The appeal raises two questions for our consideration: (1) did the district court err as a matter of law in granting sumary judgment to Continental? (2) did the district court abuse its discretion in refusing to give Freeman leave to amend? In this diversity case, “Federal courts are to apply [Mississippi] state substantive law and federal procedural law.” Hanna v. Plumer,
I. Grant of Summary Judgment
On the facts it may at first blush seem odd that the district court, on motion for summary judgment, has ordered Freeman to pay Continental the contract price for equipment that did not work as Continental had promised it would. This, however, assumes the truth of what Freeman testified to in his deposition. Although the trial court, on Continental’s motion for summary judgment, was required to accept Freeman’s deposition as true, it could give weight to it only to the extent that it set forth “such facts as would be admissible in evidence.” Fed.R. Civ.Proc. 56(e). This involves consideration of the misnamed “parol evidence rule.” It may be true, as distinguished scholars have urged, that this rule “scarcely deserves to be called a rule of evidence of any kind, and [is] a rule that is as truly applicable to written evidence as to parol evidence.” 3 Corbin, Contracts § 573, p. 358 (1960 rev.). See also Thayer, Evidence 409 (1898); 9 Wigmore, Evidence § 2400 (3d ed. 1940). The view of the Mississippi Suрreme Court, controlling here, is that “there is no better settled rule of evidence than that which declares that parol testimony is inadmissible to contradict, or substantially change, the legal import of a written agreement.” Valley Mills, Division of the Merchants Company, Inc. v. Southeastern Hatcheries of Mississippi, Inc.,
Whether or not the “parol evidence rule” is propеrly regarded as a rule of evidence, it is settled that for purposes of the Rules of Decision Act, 28 U.S.C. § 1652, a federal court in a diversity case must apply the rule as the state court would. Sperry Rand Corp. v. Industrial Supply Corp.,
Mississippi recognizes the common exceptions to the “pаrol evidence rule.” Three of these are discussed in the
Valley Mills
case, quoted above. Extrinsic evidence will be admitted to show the intent of the parties if the written instrument is ambiguous or indefinite.
*464 The •written instruments clearly and unambiguously create a contract for the sale of specified personal property f. o. b. Continental’s factory. The first paragraph of the form contract says:
“Please ship to the undersigned purchaser or purchasers (hereinafter referred to as ‘the purchaser’) between July 20 and Aug. 1, 1962, or as soon thereafter as possible, the machinery or articles herein described, under and upon warranty provided on back hereof. It is understood that the purchaser approves specifications herein contained and agrees to purchase, and upon your acceptance you agree to sell, machinery and/or articles specified and upon the terms and conditions herein expressed.”
After description of the machinery and equipment covered by the contract, there is a price clause, as follows: “The price fob. factories of the machinery or articles herein sold is to be $90,000 Ninety Thousand and no/100 dollars.” A later provision says: “The purchaser agrees to receive the machinery or articles promptly on arrival and pay the freight and charges on same.” In the letter of July 26 which was incorporated by reference prior to final approval of the contract by the parties, it is said that “this order does not include the freight.”
Other provisions in the writings further negative any contention that the parties had contracted for the sale of an operating gin in Freeman’s plant. The form contract includes the following paragraph :
“It is understood that if the purchaser dеsires to employ a contractor to superintend the erection of said machinery, the seller will see to it that the purchaser is offered an opportunity to employ a contractor for a sum of not to exceed $4.00 per man hour. The purchaser agrees to pay the contractor for time from starting point to the place of erection and return, and also to pay all traveling and other expenses of contractor or contractor’s employees from starting point to place of erection and return. Purchaser agrees to furnish contractor with any help contrаctor may need and to furnish any additional materials needed and not covered by the terms of this contract so as to complete the erection of the machinery with dispatch. Should the purchaser employ a contractor recommended by the seller it is expressly understood and agreed that the contractor is an independent contractor and not an agent or employee of the seller, and the seller shall not be liable under any circumstances to the purchaser for the work of the contractor nor shall the seller be liable to the purchaser if seller is not able to find a contractor to recommend to the purchaser.”
In the letter of July 26, Continental made reference to that paragraph when it said: “Please contact our Memphis Office in the event the services of an erector will be required to superintend the installation of this machinery, in accordance with clause in contract pertaining to erectors.”
Finaly, the contract contained a very limited warranty and an express disclaimer of other warranties. The final paragraph of the contract, immediately above Freeman’s signature, is as follows:
“When this order is accepted by the seller, it is understood аnd agreed that same, together with the warranty on the back hereof, which the purchaser expressly declares that he has read and understands, shall be and constitute the entire contract between the purchaser and the seller, and that no agreement, verbal or otherwise, other than as set forth herein, forms any part of this contract.”
The warranty on the back of the contract is lengthy. It begins by warranting the property covered by the contract to be free of defects in workmanship and material in normal use and service. It then proceeds to define narrowly the obligations of the seller, and the rights and remedies of the purchaser. In essence, the purchaser is given the right of returning to the seller, within ninety days after delivery, any part or parts of the warranted property claimed to be defect *465 ive, and they will be repaired or replaced by the seller if they prove to be defective, without cost to the purchaser. It is also provided that upon receiving notice of any claimed defect in the warranted property, the seller may at its option send an agent or agents to examine the property or to remedy or assist in remedying such claimed defect, “but such action by seller shall in no event be deemed an acknowledgment on its part of a breach of the within contract or of this warranty, and shall in no event confer upon purchaser, by waiver or otherwise, any right or remedy other than” to have defective parts repaired or replaced as earlier provided. Finally, there is a disclaimer of other warranties:
“Seller makes no warranty or representation with reference to the said machinery or articles except as hereinabove provided, and purchaser, by entering into the within contract, agrees that no other or different warranty or representation is to be implied.”
At his deposition Freeman testified that at no time had Continental failed to send him a replacement item for any part covered by the contract that he returned as defective within the ninety-day period in the warranty.
If the writing were ambiguous, then summary judgment would be improper, for the intent of the parties would then be a genuine issue of material fact. Severson v. Fleck,
The trial court found that “the language of the contracting documents now before this court are clear and unambiguous.” We agree. This exception to the “parol evidence rule” is therefore not applicable in this case.
Freeman’s principal contention is that the promises desсribed in his deposition were a contemporaneous collateral agreement, and that evidence of them is admissible under that exception to the rule. It “has almost universally been held,” Jones on Evidence (5th ed.) § 471, and the uniform teaching of the Mississippi cases is, that it is for the court to decide whether an oral promise comes within the collateral agreement exception. This determination by the court is regarded in Mississippi as either a ruling on the admissibility of evidence or as ground for a peremptory instruction E. g., Divelbiss v. Jones,
The district judge, well versed in Mississippi law, concluded that the circumstances described by Freeman’s testimony do not show a collateral agreement properly provable by parol testimony within the meaning of the Mississippi cases. We give great weight to the view of the state law taken by a district judge experienced in the law of that state, although of course the parties are entitled to review by us of the trial court’s determination of state law just as they are of any other legal question in a case. See Wright, Federal Courts 206 (1963).
Three separate lines of analysis persuade us that the district court reached a correct conclusion on the application of Mississippi law to the facts of this case.
First, proof of oral collateral agreements is limited in Mississippi, as elsewhere, to those that are “not in conflict with the provisions of the written agreement.” Valley Mills, Division of the Merchants Co., Inc. v. Southeastern Hatcheries of Mississippi, Inc.,
Second, in the
Valley Mills
case, supra, the Mississippi Supreme Court cited § 240 of the Restatement of Contracts in support of its understanding of the collateral agreement exception. The Restatement provides that a collateral agreement is provable if it is “not inconsistent with the integrated contract” and is either made for separate consideration — a circumstance not applicable here • — or “is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.” It thus becomes relevant to consider whether it would be natural for persons entering into a written contract for $90,000 worth of machinery to leave to a supplemental oral agreement features of the contract as important as those now relied on by Freeman. The Mississippi Supreme Court says: “An experienced business man, who discusses a transaction for several hours with an agent, and then deliberately sits down and signs the contract and notes, ought nоt to be heard to say that he did not understand so plain a transaction, and that an oral understanding had contemporaneously with the written contract, may be shown to contradict the written instrument.” Brenard Mfg.
*467
Co. v. Sumrall,
Third, the written agreement provides in terms that it is “the entire contract between the purchaser and the seller, and that no agreement, verbal or otherwise, other than as set forth herein, forms any part of this contract.” 3 Cor-bin, Contracts § 578, p. 403 (1960 rev.), states that such a declaration is “conclusive,” citing, among many other authorities, Creek-Neal Coffee Co. v. Morrison-Hinton Grocery Co.,
The Mississippi ease closest to ours is Stribling Brothers Machinery Co. v. Girod Co.,
This is an issue properly resolved on motion for summary judgment. A particularly instructive case is Boro Hall Corp. v. General Motors Corp.,
II. Refusal of Leave to Amend
The other issue presented by the appeal may be readily disposed of. This action was commenced on April 10, 1964. The parties and the court proceeded expeditiously, and summary judgment was granted Continental on January 2, 1965, subject to a later hearing to determine the size of the attorneys’ fee to be awarded Continental on Count I, and the amount due on the open account pleaded in Count II. More than eight months after the grant of summary judgment and shortly before the October term of the district court was to open, Freeman filed, on September 7, 1965, a motion to amend his answer and countеrclaim; and on October 6, 1965, Freeman filed his motion to set aside or reopen the summary judgment previously granted, and for leave to amend his answer and counterclaim. The proposed amendment would have charged Continental with fraud in making the oral promises and representations earlier held properly excluded under the “parol evidence rule” when offered to show breach of contract. These motions were denied by the district court.
It is clear, of course, that the “parol evidence rule” does not bar extrinsic evidence to show fraud. McArthur v. Fillingame,
Rule 15(a) requires leave of court for such an amendment as this, but says that “leave shall be freely given when justice so requires.” As this court has observed before, this “is not a mechanical absolute and the circumstances and terms upon which such leave is to be ‘freely given’ is committed to the informed, careful judgment and discretion of the Trial Judge as he superintends the development of a cause toward its ultimate disposition.” Lone Star Motor Import, Inc. v. Citroen Cars Corp.,
It is clear that lack of diligence is reason for refusing to permit amendment. So holding is Wheeler v. West India S.S. Co.,
The motion to amend in this case was made more than three years after the evеnts in question had occurred. It was made fourteen months after the filing of Freeman’s original answer, in which no claim of fraud was raised, and more than eight months after the court had granted summary judgment to Continental. In his brief in this court, Freeman suggests that extended negotiations for settlement after the grant of summary judgment accounted for the delay in then presenting his proposed amendment. There is nothing in the record to support this; and counsel for Continental, in their brief, deny its correctness in point of fact. Even assuming, however, that this would be a sufficient explanation for the delay from January to September, it does not explain the failure tо propose such an amendment prior to the grant of summary judgment. The facts on which the claim of fraud is based were fully known to Freeman from the outset of the lawsuit and, indeed, were relied on by him, though under a different theory, in his original answer. It was not until that theory was rejected by the trial court — correctly as we have held above — that the amendment was tendered seeking to make out a showing of fraud from those facts.
A busy district court need not allow itself to be imposed upon by the presentation of theories seriatim. Liberality in amendment is important to assure a party a fair opportunity to present his claims and defenses, but “equal attention should be given to the proposition that there must be an end finally to a particular litigation.” Friedman v. Transamerica Corp.,
We deem that these principles apply equally to so much of the proposed amended answer as purported to be a supplemental pleading under Rule 15(d).
We hold that a district court does not abuse its discretion in refusing to allow amendment of pleadings to change the theory of a case if the amendment is offered after summary judgment has been granted against the party, and no valid reason is shown for failure to present the new theory at an earlier time.
The judgment of the district court is in all things
Affirmed.
Notes
Continental also submitted affidavits in opposition to Freeman’s motion for summary judgment, but on the view we take of the case we do not consider them.