Winstead v. Acme Manufacturing Co.

Clarkson, J. The order was dated 11 April, 1931, and called for 200 sacks brand Acme Wizard Fertilizer, c. (cotton) and c. (corn) 8-3-3. Can this order be contradicted in the absence of fraud or mutual mistake, or mistake of one party induced by false representations of the other ? We think not. Defendant contended that the goods were hot ordered for tobacco and were not shipped for that purpose. That if the fertilizer was used for tobacco that it was plaintiff’s responsibility, as the signed order was for cotton and corn goods, and that the fertilizer was shipped on 15 April, 1931' — after the order was signed. The plaintiff testified: “That is my signature on the paper-writing, dated 11 April, 1931. When I last saw it, there was nothing on it but my name.” The plaintiff was then asked the question: “Was there any C (cotton) and O (corn) on this paper? A. 'No, sir.’” Objection by defendant-, objection sustained; motion to strike by defendant; motion allowed; the plaintiff excepts. “Q. Did you order from the Acme Fertilizer Company, during the year 1931, any corn or cotton fertilizer ?” Objection by defendant; objection sustained; plaintiff excepts. Plaintiff *113 moves to amend bis complaint to allege tbat tbe contract of 11 April was fraudulently filled in. Tbe court in its discretion overrules tbe motion. Plaintiff excepts. In Carlton v. Oil Co., 206 N. C., 117 (117-118), it is said: “Tbe general rule undoubtedly is, tbat no verbal agreement between tbe parties to a written contract, made before or at tbe time of tbe execution of sucb contract, is admissible to vary its terms or to contradict its provisions. All sucb agreements are considered as varied by and merged in tbe written contract. 'It is a rule too firmly established in tbe law of evidence to need a reference to authority in its support, tbat parol evidence will not be beard to contradict, add to, take from, or in any way vary tbe terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for sucb purpose, for tbe reason tbat tbe parties, when they reduce their contract to writing, are presumed to have inserted in it all tbe provisions by which they intend to be bound! Smith, C. J., in Ray v. Blackwell, 94 N. C., 10; Overall Co. v. Hollister Co., 186 N. C., 208, 119 S. E., 1; Exum v. Lynch, 188 N. C., 392, 125 S. E., 15.” Tbe learned and able attorney representing plaintiff did not reply to defendant’s further defense, and set up fraud, mutual mistake, or mistake of one party induced by false representations of tbe other in signing tbe paper-writing of 11 April, 1931, although tbe pleading by defendant bad been filed for over two years before tbe case came for trial. To do this on tbe trial, tbe court below, in its discretion, refused plaintiff’s request. Tbe court bad this discretion. Sams v. Cochran, 188 N. C., 731 (733); Lee v. Martin, 191 N. C., 401; Fleishman v. Burrowes, 198 N. C., 514; Lipe v. Trust Co., 206 N. C., 24 (29). Tbe notes in controversy were given on 8 May, 1931, to cover tbe order of 11 April, 1931, after seventy-five per cent of tbe fertilizer bad been used. Tbe fertilizer was shipped after tbe order was made. In excluding plaintiff’s evidence on tbe present record we see no error, or in tbe charge of tbe court below. We do not think it necessary to discuss tbe case of Swift & Co. v. Aydlett, 192 N. C., 330, tbe principle in tbat case we adhere to, but is not applicable to this record. If defendant attempted to perpetrate a fraud on tbe plaintiff, be should have made a reply to defendant’s pleading and set it up, and then be would have been beard. In tbe present action tbe lack of consideration is bottomed on tbe allegation tbat plaintiff bad purchased tobacco fertilizer and was sent cotton and corn fertilizer. This was tbe theory tbe case was tried on. There is no contention tbat tbe fertilizer was worthless so far as tbe purposes set forth in tbe order was concerned. Tbe truth or falsity of tbe order of 11 April, 1931, was tbe bone of contention. Tbe fertilizer was shipped under this order and tbe two notes of 8 May, 1931, were *114 thereafter given in conformity with the order. This order was valid unless set aside by fraud or mutual mistake, or mistake of one party induced by false representation of the other. This action is distinguishable from the opinion in Galloway v. Thrash, post, 165. For the reasons given, in the judgment of the court below in law we find No error.