Fears v. Watson

Hart, J. B. M. Fears sued B. L. Watson in replevin to recover some wire fencing, some pump pipe and a pump point. The material facts are as follows: John Zollman leased certain lands from B. L. Watson. During the life of the lease, Zollman purchased from Bertig Bros, some wire fencing, a pump point and some pump pipe for the sum of $13.60, for which he executed a note due Oct, 15,1914. Ben Fears signed the note as surety. The note contained the following: “It is expressly agreed that the title and ownership of all said property shall remain in Bertig Bros, until the full purchase price is paid,” etc. The note was made on the regular printed' form prepared and used by Bertig Bros, when they sold personal property and retained title in themselves until it was paid for. On the back of the note was endorsed the following: Pump ................$13.60 Pipe...................75 Point .................. 14.35 Wire Bertig Bros, assigned the note to Ben Fears and also gave Him a bill of sale of tbe personal property above described. After the articles were purchased by Zollman be attached them to the leased property. It was shown by parol evidence that Bertig Bros, did not intend to retain title to tbe articles in question, but that form of note was used because it happened to be lying upon tbe desk at tbe time tbe purchase was made. Tbe court directed a verdict for tbe defendant Watson and the plaintiff Fears has appealed. In the case of Peck-Hammond Company v. Walnut Ridge School District, 93 Ark. 77, where a heating apparatus was sold to tbe contractor of a public schoolhouse, to be installed there upon condition that tbe title should remain in tbe vendor until tbe purchase price was paid, but tbe school board had no knowledge of such condition, and the apparatus was installed in the building, it was held that the reservation of title could not be enforced. In that case tbe vendor knew that tbe articles sold were to be installed in tbe building and that tbe building was not erected for tbe contractor but was being built for use as a school house by the public. The principle there ¡announced has no application to tbe facts of tbe present ease. Here the vendor of the articles expressly reserved the title until the purchase price was paid, and the vendee could vest no absolute title in 'another until be paid the purchase money. Zollman could not by affixing the article to tbe land leased by him from Watson vest the title in tbe latter. This point was so ruled in the case of Butler v. Adler-Goldman Commission Co., 62 Ark. 450. It was not competent to show by parol testimony that it was not the intention of Bertig Bros, to reserve title in themselves until the property was paid for. Tbe admission of this testimony violated the well-known rule that parol evidence is not admissible to contradict or to vary or add to any of the terms of a written contract. When Bertig Bros, sold the articles to Zollman and took bis note therefor on the printed form of contract, their previous negotiations became merged in the written contract -and it could not be varied by parol testimony. The note in plain terms reserved the title to the property sold in the vendors until it was paid for. The printed form of contract did not have room enough to place more than one article and there being more than one article sold, these articles were "placed upon the back of the printed form. This was done for 'the purpose of identifying the articles and the endorsement became a part of the written contract. It follows that the court erred in directing a verdict for the defendant and for this error the judgment will be reversed and the cause remanded for a new trial.