383 Pa. 521 | Pa. | 1956
Opinion by
Plaintiff brought an action of assumpsit for goods sold and delivered to defendant.
On June 16, 1952, Frank L. Twitty, President of plaintiff-seller, met with the cosmetic buyer of defendant at defendant’s place of business in Philadelphia for the purpose of discussing the sale by plaintiff to defendant of a certain product used by women to create a streak in their hair. They made an oral agreement which included such items as a schedule of newspaper advertisements, radio advertisements, method of displaying the item, the payment of a special bonus to sales personnel of defendant for selling the product and the allowance to defendant of certain discounts. After all the above terms had been agreed upon, defendant requested the merchandise be sent to defendant on consignment. This request plaintiff refused stating that the transaction would have to be an outright sale. From that point on, there was a conflict in the testimony.
Plaintiff testified that defendant agreed to pay for all merchandise it had sold at the end of thirty and sixty days following delivery and to pay for the balance of the merchandise at the end of ninety days. Defendant, on the other hand, testified that it agreed to pay for whatever merchandise had been sold at the end of each thirty day period and that defendant could return whatever merchandise eventually proved unsaleable.
Defendant contends that by deleting on its order blank the words “10 days EOM”, leaving the words which are inserted in pencil “Pay as sold every 4 weeks 2%” (printed) “the time for payment became indefi
Defendant seeks a judgment n.o.v. on the theory that its order dated June 16th, which contained the above mentioned penciled words “Pay as sold every 4 weeks” plus the deletion, constituted a written contract when goods were thereafter shipped by plaintiff to defendant. It then invokes the familiar rule that all preliminary negotiations and agreements orally made are merged in and superseded by a written contract; and that parol evidence by plaintiff was inadmissible to contradict or vary the written contract in the absence of fraud, accident or mistake. This rule is totally inapplicable to the facts in the instant case. The order blank did not constitute a written agreement between the parties and certainly did not purport to cover the entire agreement of the parties. See Bardwell v. The Willis Co., 375 Pa. 503, 100 A. 2d 102.
Defendant correctly contends that parties to an oral agreement, or indeed to a written agreement, can subsequently make a new and valid agreement changing the prior agreement.
Judgment affirmed.
Printed.
In Elliott-Lewis Corp. v. York-Shipley, Inc., 372 Pa. 346, 350, 94 A. 2d 47, this Court said: “. . ., it is well settled that a written agreement may be modified by a subsequent (written or) oral agreement and that this modification may be shown by writings or by words or by conduct or by all three: Betterman v. American Stores, 367 Pa. 193, 80 A. 2d 66; Knight v. Gulf Refining Company, 311 Pa. 357, 166 A. 880; Friday v. Regent Improvement Co. 220 Pa. 481, 199 A. 914.”