Opinion
No. 27301.
October 8, 1928.
CONTRACTS. Contract for installation of sprinkler system held to require person installing system to furnish materials.
Contract for installation of sprinkler system held to require person installing system to furnish material, notwithstanding provision to effect that, in case entire agreement was not covered, anything left out could be arranged subsequently.
APPEAL from circuit court of Madison county; HON. W.H. POTTER, Judge.
Robertson Campbell, for appellant.
It is a well-settled principle of law that parol evidence or evidence other than the terms of a written contract itself is not admissible to add to or vary the terms of the written contract and we have no conflict with this basic principle of law. However, there are numerous exceptions to this rule, several of which exactly apply to the facts of this case, but the exception which applies most exactly to the facts in this case is as follows: "A letter written by one of the parties to an agreement after the agreement has been completed and showing on its face that it is merely a confirmatory letter and a statement of the writer's opinion as to what the agreement is, is not a contract which comes within the rule that parol evidence is inadmissible to add to or vary the terms of a written agreement. See Milton v. Burton (Fla.), 84 So. 149; Britton v. Johnson McQuitty Motor Co., 251 P. 74, 120 Okla. 221; Hardella v. Welin Davit Boat Corporation, 220 N.Y.S. 115, 219 App. Div. 353; Perry v. Bates, 100 N.Y.S. 884, 115 App. Div. 337; Alderman v. Westinghouse Air Brake Co., 97 Conn. 419, 103 A. 267; Means v. Blanks, 84 So. 742, 22 C.J. 1132, 10 R.C.L. 1019, 1030; Stebbins v. Niles, 25 Miss. 267; Doe ex dem Caillaret v. Bernard et seq. (Miss.); 7 S. M. 319; Ohio Pottery Glass Company v. Pickle (Miss.), 66 So. 321; Schlater Mercantile Company v. Brinly Hardy Co. (Miss.), 68 So. 444; Hunt et al. v. Garner (Miss.), 112 So. 7; Williams v. W.M. Hardy Son (Miss.), 106 So. 17.
Ray Spivey, for appellee.
Appellant, on the trial in the lower court, attempted to introduce evidence of an agreement, orally, before the letter was written, under which appellant was acting as appellee's agent, and that the materials necessary for the construction of the sprinkler system was purchased from the Central Automatic Sprinkler Co. Such evidence was objected to for the reason that the suit was based on a contract, a copy of which appellant made a part of his pleadings, and that evidence contrary to appellant's pleadings was incompetent. The objection to the evidence was sustained by the lower court.
"It is common learning that it is not permissible to make one case in the pleadings, and another one by the proof." Powell v. Plant (Miss.), 23 So. 399; Fowler v. Austin (Miss.), 1 Howard's Reports 156.
Appellee relies squarely on the holding of this court in Ozen v. Sperier, 117 So. 117, in disposing of this question that the appellant is bound by his pleadings, thus rendering evidence offered by appellant as to the oral agreement in conflict with the written acceptance inadmissible.
Robertson Campbell, in reply for appellant.
Counsel attempts to answer our contentions by saying that the proof as shown by the record does not conform to the pleadings, but the record clearly shows that the proof does conform to the pleadings. Appellee contends that the letter made Exhibit "A" to the petition of appellant is an entire contract because it is made an exhibit and that the suit is based thereon. It is clearly seen from a reading of the petition that the letter is described not as being a contract but as being a confirmatory letter of an oral contract upon which the suit is based.
Neither the later made Exhibit "A" or the telegram made Exhibit "B" to the amended petition was a complete contract and neither was the basis of the suit. Both the letter and telegram were merely evidentiary and constituted only a part of a transaction which was composed of both oral agreements and written correspondence, and being evidentiary it was not necessary to make either an exhibit to the petition and the filing of the letter and telegram as exhibits was mere surplusage. See Panola County Bank v. J.S. Nassen Lumber Co. (Miss.), 78 So. 516; Quarles v. Hucherson (Miss.), 114 So. 148.
Argued orally by Chas. S. Campbell, for appellant.
Appellant brought this action in the court of a justice of the peace of Madison county against appellees. Merchants' Wholesale Grocery Company and Madison County Farm Bureau, two corporations under the laws of this state doing business at Canton, Madison county, to establish and enforce a mechanic's and materialman's lien upon the land and buildings of appellees for the payment of a balance of one hundred seventy-two dollars and nineteen cents, alleged to be due appellant by appellees under a contract between them, by the terms of which the former undertook to install, and had installed a sprinkler system in the buildings of the latter. There was a trial, resulting in a judgment in appellant's favor, from which judgment appellee appealed to the circuit court of Madison county, where there was a trial de novo. On the trial in the circuit court a directed verdict was granted in appellees' favor, resulting in a judgment accordingly. From that judgment appellant prosecutes this appeal.
The basis of appellant's suit was the following contract in the form of a letter from appellees to appellant:
"This is to confirm our purchase from you of the materials necessary to construct and install one of your sprinkler systems in the Merchants' Wholesale Grocery Company building and the Farm Bureau building in Canton, Miss., for which we agree to pay the sum of one thousand seven hundred fifty-six dollars less two per cent. for cash.
"We also agree to pay ten per cent. commission of material, and eight dollars per day for one foreman and four dollars per day for two competent helpers to install same, which work must, however, be completed within a reasonable time, and in a satisfactory manner, and such a manner that the same will be first approved by insurance inspector so we can get the reduction in insurance rates as assured by you, final settlement not to be made until this is done, and accepted as above.
"We think this covers our agreement though should anything be left out we can arrange it when we see you again."
Appellant made the contract an exhibit to its petition. The case turns on whether, under the contract between appellant and appellees for the installation of the sprinkler system, appellant was to furnish the necessary materials for that purpose, or whether appellees were to furnish them.
Appellant offered to prove by parol testimony that the materials were to be furnished by appellees and not by appellant. This testimony was ruled out. The court held that the proposed evidence was not admissible, because the effect of it would be to vary the terms of the written contract between the parties, which was the foundation of appellant's suit. We think the court committed no error in so holding. The written contract plainly provides for the purchase of the necessary materials for the sprinkler system by appellees from appellant. Appellant lays stress on the last paragraph of the contract in this language, "We think this covers our agreement though should anything be left out we can arrange it when we see you again." Appellant's contention is that that provision in the contract left open the question as to who should furnish the materials; and under it, as stated, offered to prove that there was a parol agreement, by which appellees were to furnish the materials for the sprinkler system, and not appellant. We do not so understand the contract. As stated, the contract provides expressly that the materials should be furnished by appellant. That fact was not "left out" of the contract. The last paragraph of the contract quoted was only intended to cover such matters and things as were not provided for in the contract. We do not think a contrary construction of the contract would be reasonable. The contract was embodied in a letter from appellees to appellant, the terms of which were accepted by the latter. Appellees said in their letter that certain things, setting them out, were agreed upon; and concluded in a paragraph by saying if there were other matters left out of the letter, they could be agreed upon later.
We think the trial court was clearly right in directing a verdict for appellees.
Affirmed.