Opinion
No. 31143.
March 26, 1934.
1. EVIDENCE.
Parol evidence showing prior or contemporaneous oral agreements and representations is admissible when offered to nullify written contract on ground it was procured by fraud.
2. EVIDENCE.
Parol evidence showing that lessee's agent, before or contemporaneously with execution of written contract for lease and operation of filling station, made oral agreement to pay additional compensation to lessor, held inadmissible, where lessor sought to enforce written agreement and to add another stipulation thereto by parol.
APPEAL from Circuit Court of Wilkinson County.
Jones Stockett, of Woodville, for appellant.
A statement by one that he is an agent cannot be proven by testimony by others as to such statements.
Walters case, 136 Miss. 361.
Although the plaintiff in his declaration directly charged that the written contract had been orally modified, his proof wholly fails in that particular.
All of the oral agreements and understandings were merged in and are controlled by the writing itself. The stipulation for the payment of commissions is contractual and cannot be varied by parol.
Thompson v. Bryant, 75 Miss. 12; Baum v. Lynn, 72 Miss. 932; Cocke v. Blackburn, 58 Miss. 537.
Where a contract is partly in writing and partly parol it is not permissible to vary by parol that portion of the agreement which was by the parties reduced to writing.
English v. N.O. N.E.R.R. Co., 100 Miss. 809.
In vain will contracts be written and governed by their terms as expressed in writing, if defendants, who are able to do so, fail to read them over and will allow to set up verbal understandings at variance with the written terms of the contracts.
Jourdan v. Albritton, 146 Miss. 651.
Clay B. Tucker, of Woodville, for appellee.
A principal can always ratify the acts of its agent, and the fact that appellant complied with the oral agreement of its agent, J.E. Herrington, in paying the privilege license of the appellee, when the written lease contract stated positively that appellee was to pay such privilege license, and offered to paint his building which offer was refused, appellant ratified the oral agreement so made by its said agent, J.E. Herrington, and having ratified part of the agreement, appellant, without any repudiation whatever, thereby ratifies the whole and entire agreement.
A ratification need not be expressed, but may be established by circumstances.
Baker v. Byrne, 2 S. M. 193; Meyer v. Morgan, 51 Miss. 21, 24 Am. Rep. 617; Kountz v. Price, 40 Miss. 341.
Parol evidence is admissible to show that the making of a written contract was procured by fraudulent representations. Evidence of this kind does not vary the written contract; it destroys and avoids it; it impeaches the written contract. Its purpose is to show that there is no valid, written contract.
Hirschburg Optical Co. v. Jackson, 63 Miss. 21; Henry v. W.T. Rawleigh Co., 152 Miss. 320, 120 So. 188; Ferguson v. Koch, 268 P. 268, 58 A.L.R. 1176 and note; Motor Co. v. Childress, 156 Miss. 157, 125 So. 708.
Parties after making written contract may enter into enforceable parol contract in addition to or in waiver of original contract.
McDonnell Const. Co. v. Delta Pine Land Co. et al., 163 Miss. 646, 141 So. 757; Lusk-Harbison-Jones, Inc. v. Universal Credit Co., 164 Miss. 693, 145 So. 623.
The evidence clearly and positively establishes that the appellant, because of the fraudulent representations of its agent and representative, J.E. Herrington, obtained the benefit of E.A. Wood selling its gasoline and motor oil at his filling station for the year 1932, and if allowed to avoid the oral agreement sued on, will be permitted to accept all the benefits and not to accept the responsibilities.
21 R.C.L., Principal and Agent, sec. 111; Bowers v. Johnson, 10 S. M. 169.
Appellee, E.A. Wood, wrote the appellant, on May 30th about the oral agreement, and continued to insist on a settlement under the oral agreement, and Mr. Van Zile or Dyer, another representative of the appellant company, accompanied by Mr. Herrington, came to Woodville and checked up on the oral agreement in September, 1932, and agreed that the company owed Mr. Wood two hundred two dollars and four cents under the said oral agreement. This certainly was a confirmation of the oral agreement made on February 4, 1932, and this confirmation came after the Pan-American Petroleum Corporation, the appellant, had executed the written contracts introduced in this case, and after the rider executed on July 1, 1932, had been executed by Mr. Wood and the appellant, and cures any objection to the admission of parol evidence as to the oral agreement made between Mr. Wood and Mr. Herrington on February 4, 1932, since it is a parol contract in addition to the original written contract.
McDonnell Const. Co. v. Delta Pine Land Co., 163 Miss. 646, 141 So. 757; Lusk-Harbison-Jones v. Universal Credit Co., 164 Miss. 693.
Argued orally by A.H. Jones, for appellant.
The appellant was the defendant, and the appellee was the plaintiff in the court below, and they will be hereinafter so styled. The plaintiff sued the defendant on a declaration containing two counts. The first set forth a written contract whereby the defendant leased from the plaintiff a filling station for a period of one year; appointed the plaintiff as its agent for the sale of gasoline at this filling station; agreed to pay him two and one-half cents commission on each gallon thereof sold by him; that the plaintiff complied with this written agreement, and there remained due him thereunder the sum of four dollars and fifty-one cents. The second count set forth an oral agreement by which the defendant agreed to pay the plaintiff an additional commission of one-half cent a gallon on gasoline sold by it for him, and that there was due the plaintiff under this agreement the sum of two hundred twenty-six dollars and five cents. The plaintiff recovered the full amount sued for.
The controversy arises over the alleged parol agreement. According to the defendant, an agent whose powers and duties are not disclosed by the record, approached the plaintiff, having then with him the written agreement in the form in which it was finally executed, and asked him to contract with the defendant in accordance therewith, which the plaintiff declined to do unless his compensation was increased. This the agent stated the defendant would not agree to, but said that, if the plaintiff would sign the agreement, they could get together on his requested increase of compensation. The plaintiff then signed the agreement, delivered it to the agent who thereafter forwarded it to his principal, the defendant, which signed it, and the agreement, or a copy thereof was thereafter delivered to the defendant. Immediately upon the defendant signing the agreement, this agent orally agreed that the compensation would be one-half cent a gallon for the sale of the gasoline more than stipulated in the written agreement.
The defendant claims that in so far as the agent's authority to make the parol agreement is concerned, it is immaterial whether he possessed such power or not, for it was afterwards ratified by certain conduct of the defendant pursuant thereto. This question will be pretermitted, and we will come at once to the effect of this oral agreement.
As hereinbefore stated, the agreement was made before the completion of the written agreement; for it did not become complete until it was thereafter signed by the defendant. But even if we should hold that it was complete when it was signed by the plaintiff, the oral agreement was partly made before the defendant signed it and completely made contemporaneously therewith; and since it materially varies a contractual feature of the written agreement, it can be given no effect unless, under the rule invoked by the plaintiff and within which he says the case comes, oral agreements and representations fraudulently made to induce the execution of a contract, are admissible in evidence. This is not a complete statement of the rule. Such evidence is admissible when it is offered for the purpose of nullifying a written contract on the ground that it was secured by fraud. This rule has no application here for the reason that the plaintiff does not seek to destroy the written contract. What he is seeking to do, is to enforce the written agreement and add another stipulation thereto by parol.
An instruction requested by the defendant, and refused, charging the jury to find a verdict for the plaintiff for four dollars and fifty-one cents, should have been given, and there should have been a judgment accordingly.
The judgment of the court below will be reversed, and judgment for the plaintiff for four dollars and fifty-one cents, which should have been rendered in the court below, will be rendered here.
So ordered.