Taylor v. Seaboard & Roanoke Railroad

MerrimoN, J., (after stating the ease). The counsel for the appellee contends in the argument before us, and it may be here conceded to be so, that the “tickets ” putin evidence on the trial each embodied a contract in writing between the holder thereof and the defendant. The latter and the holder *188 of the ticket each had a right to insist upon a strict observance of every máterial stipulation, provision and requirement contained in it. Particularly for the present purpose, the defendant had the right to require that the plaintiffs should each be present in person and respectively present to its proper agent at Old Point in Virginia, his or her ticket and identify himself or herself as the original holder thereof by writing his or her name thereon and having the return “ checks ” stamped as in the check provided, which the plaintiff did not do. But the contract being a simple contract in writing, it was competent for the defendant at any time after it was made, and before any particular provision of it had been complied with, to waive a compliance with the same on the part of the plaintiffs by a subsequent verbal agreement — one not in writing. It is true, that a simple contract completely reduced to writing cannot be contradicted, changed or modified by parol evidence of what was said and done by the parties to it at the time it was made, because the parties agreed to put the contract in writing and to make the writing part and evidence thereof. The very purpose of the writing is to render the agreement the more certain and to exclude parol evidence of it. Nevertheless, by the rules of the common law, it is competent for the parties to a simple contract in writing before any breach of its provisions, either altogether to waive, dissolve or abandon it, or to add to, change or modify it, or vary or qualify its terms, and thus make it a new one, which must in such case be proved partly by the written and partly by the subsequent unwritten parol contract, which has thus been incorporated into and made part of the original one. The reason for this seems to be that simple contracts, whether written or otherwise, are of the same dignity in contemplation of law, and therefore the written may be changed, modified, or waived in whole or in part by a subsequent one, *189 express or implied. Smith on Contracts, (*) 29; Chitty on Contracts (*) 105, and notes; Waits Ac. & Def., 344, 362. The plaintiffs did not contend on the trial that the “ tickets ” referred to did not correctly express the contract between them respectively and the defendant as of the time they were issued, but that subsequently the defendant, through its properly authorized agent, agreed to waive and did waive so much of each contract, “ticket” in writing, as required the plaintiffs to appear personally before the defendant’s agent at Old Point in Virginia, and there produce the tickets and identify themselves respectively as the original holders of them, by writing each his or her name on their tickets respectively and having the return checks attached to them stamped as required. It was competent for the defendant to waive such requirement in writing or by parol agreement, and it was likewise competent for the plaintiffs to prove such agreement of waiver by parol. The evidence produced and received in the trial tended to prove such agreement — that the defendant’s agent, or a person representing himself to be its properly authorized agent at Norfolk and not at Old Point, identified the plaintiffs in the proper connection and did there what the defendant might have required to be done at Old Point, to give the “ tickets ” effect for the return trip. The plaintiffs further “ offered to prove that the person who required and stamped the tickets at Norfolk was the authorized agent of the defendant” — that is, fairly interpreting the record— authorized to do what he purported and undertook to do. Upon objection the Court refused to allow the plaintiffs to produce such evidence. We think it was pertinent and competent, and should have been received. As it was not, the plaintiffs are entitled to a new trial, and we so adjudge. Error.