146 Ark. 81 | Ark. | 1920
Appellant instituted .suit against appellee in the circuit court of Conway County for $712.50, the purchase price of twenty-live sewing machines, alleged to have been shipped by appellant to appellee under written contract, or order, signed by both parties. The contract on its face was an unconditional order for twenty-five rotary sewing machines of certain style and kind, at a stipulated price under specified terms. The contract contained the folloYving clause limiting' the authority of its traveling salesman’:
“The above is an exact statement of the terms agreed upon as per order above; and it is fully understood and agreed that no claims or demands on account of any promise, either verbal or written, or any agreement of any kind whatever, outside of this order, will or can be made; the undersigned agreeing to be bound strictly by the terms and conditions above named, and not to countermand this order. Purchaser is requested to read this order carefully.”
The contract also contained a blank line for approval of appellant.
Appellee pleaded as one of his defenses that the order was signed upon the following written condition attached to the contract as a part thereof: “I will put on a sewing machine sale for you,- furnish all cloth and odd matter, and charge you nothing for the sales, but for each sale I make and you accept in writing I will charge you 20- per cent, of the net sale after deducting allowance for old machines. I will start this sale on or about October 2nd of the week you select, if you advise me ten days in advance. I agree to remain here or have my help remain here until all machines are sold satisfactory to you. If I do not sell all in sixty days, I will refund your freight charges and remove all unsold machines.”
Under our view of the case, it is unnecessary to set out the other defenses or additional pleadings. The cause was submitted to the jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment for appellee, from which judgment an appeal has been duly prosecuted to this court.
The facts are that appellant, an Ohio corporation, through its salesman, attempted to sell a business, concern in Conway County, controlled by appellee, a lot of sewing machines unconditionally. Appellee refused to enter into the contract as drawn, unless modified by writing, either in the body of the order or by written guaranty attached to the effect that the salesman would put on a sale and either sell all the machines within sixty days from October 2, 1915, or such week as appellee might select, for 20 per cent, of the net profit, providing that, in case of a failure to sell any part of the machines, to refund the freight paid by appellee and to remove -all unsold machines. The agent thereupon attached an additional writing to that effect to the order, and the order and additional writing were signed by both parties. The order was signed by W. A. Cachere, as salesman, and the additional writing by W. A. Cachere. As finally drafted, and thus signed, it consisted of three pages and was copied, in 1916, by Miss Clara Schneider, a stenographer in the office of appellee’s attorneys. Her copy was introduced in evidence. Contrary to the agreement that the additional writing should become a part of and be attached to the original order, the salesman sent appellant the order without the additional writing attached as a part thereof, and it shipped the machines without knowing that the guaranty was attached, or agreement of its agent that it should be attached. The saleman’s duty was to secure orders and submit them to the home office of appellant for execution or acceptance. The contract, as finally drawn and signed by appellee and the salesman, was never sent to the home office of appellant for acceptance or ratification. Only a part of it was sent in and approved. In accordance with the guaranty, the agent put on the sale. Four or five machines were sold, and the remainder returned to appellant, who refused to receive them.
Based upon the facts, as detailed above, appellant requested a peremptory instruction, which was refused, and it now insists upon a reversal because the court refused to instruct a verdict for it. The insistence is that the filled-in printed order blank, signed by the parties, is the entire contract and made so by the restrictive clause preventing appellant’s salesman from making any written or verbal changes therein. The evidence is that appellee refused to sign the written order unless modified by written guaranty that the agent would put on a sale of the machines, remove such as were not sold, and refund the freight thereon; that, in order to procure the order, the agent appended a written undertaking to that effect, at which time the parties signed the order and additional undertaking. The agent sent the original order to appellant for acceptance without the written guarantee which he attached, or agreed to attach. Appellee gave an order for the machines which contained an agreement on the part of the agent to put on a sale, to remove all unsold machines, and to return the freight advanced thereon. Appellant accepted an order without such an agreement in it, and consequently the minds of the parties never met upon the same contract. The proposed contract and the one accepted materially differed in terms.
But it is contended that it was error to admit oral evidence to vary the terms of the written order or contract. Under the issue tendered by the answer in this case, the purpose of the oral evidence was to establish the terms of- the order proposed by appellee, and not to contradict the terms thereof. The proposed order, signed by appellee, was not to become his contract without the undertaking attached thereto, when approved or accepted by appellant, and it was proper to prove that fact by parol evidence. In cases quite similar to the instant one, the principles thus announced were accurately stated and applied by this court. Barton-Parker Mfg. Co. v. Taylor, 78 Ark. 586; William Brooks Medicine Co. v. Jeffries, 94 Ark. 575.
No error appearing, the judgment is affirmed.
