111 So. 106 | Miss. | 1927
On October 31, 1924, the appellant's local representative at Poplarville, Miss., negotiated a contract to sell and deliver to the appellee one Kimball player piano, style No. 44, at and for the price of six hundred seventy-five dollars, two hundred and fifty dollars of which was to be paid by the delivery to the appellant of a secondhand piano then owned by the appellee, and the balance to be paid in installments extending over a period of two years. This contract of sale was in writing, signed by the appellee, and it set forth the payments to be made by the appellee, and described the piano sold and to be delivered as one "Kimball player, No. 342845, style 44," and reserved the title of said piano in the appellant until all the deferred installments of the purchase price had been fully paid. Across the top of this contract there was printed, in bold type, the following: "This contract taken subject to the approval of Junius Hart *492 Piano House, Limited," while at the bottom of the contract there was printed a special notice reading as follows: "Special Notice — Carefully read the terms of this contract before signing, as no verbal or written agreement or understanding not contained therein will be recognized by us." The appellee signed this contract in the regular space provided thereon for the signature of the purchaser, and also signed it again just under the above-mentioned "special notice."
Over the objection of the appellant, the appellee was permitted to testify that the agent who negotiated the contract of sale represented that the style 44, Kimball piano, contained a mandolin attachment, that this representation was the moving cause of his purchase of the piano, and that, if it had contained this mandolin attachment, he would have paid the contract price. He admitted that on the day the piano was delivered he discovered that it did not have this attachment. He further testified that, after he discovered that the piano did not have the mandolin attachment, he took the matter up with the local agent who had sold it to him, and that this agent promised to have the attachment put in, and that, on the strength of this promise, after he had used the piano about two weeks, he made the first payment of two hundred and fifty dollars by delivering his old piano to the appellant. He further testified that he made frequent complaints to appellant's local agent at Poplarville, but that he never, at any time, made any report or complaint to the appellant on account of the absence of the mandolin attachment, and that he never offered to return the piano. He made no further payments on the purchase price thereof, and to the frequent letters and demands for payment from the appellant he made no response whatever, but continued in the possession and use of the piano until July 30, 1925, when this suit was filed.
In the case of J.B. Colt Co. v. McCullough,
"Where a written contract was negotiated by an agent, and contained a written stipulation that no agent had made any representation other than those embraced in the contract, and such contract shows on its face that it was to be sent to the principal at its home office for acceptance or rejection, the terms of the contract cannot be varied by showing other representations made at the time of the signing of the contract by the first party, as the contract is the sole repository of its terms."
This rule applies to the facts in the case at bar. The contract here involved bore upon its face the notation that it was subject to the approval of the principal before it should become binding, as well as the further stipulation that no verbal or written agreement or understanding not contained in the written contract itself would be recognized by the appellant company. The appellant accepted the contract without any notice therefrom that a mandolin attachment was desired or required to comply with the terms thereof, and it delivered a piano of the exact kind and description called for in the contract of sale. The appellee received this piano, and, after he had the possession and use thereof for two weeks, and had discovered that it did not contain the desired attachment, he made the first payment of the purchase price, and thereafter retained the possession and use thereof for a period of about nine months, without any offer to return it, and without giving the appellant company any notice whatever that the instrument was unsatisfactory or not a full compliance with the terms of sale. Under these circumstances, the terms of the written contract of sale cannot be varied or added to by proof of oral representations made by the agent prior to and at the time of the signing of the contract. Neither is the position of the appellee improved by reason of the fact that he testified that he notified the local agent of the company of the defect in the piano, and that this agent promised to remedy the defect by supplying a mandolin attachment, since by the original contract the appellee *494 was fully notified that this agent had no authority to make such representations, and that no representations, agreements, or understandings not contained in the written contract would be recognized by the appellant company.
For the error in admitting testimony to vary and add to the terms of the written contract, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.
