Opinion
No. 39763.
October 24, 1955.
1. Conditional sales contract — subsequent parol modification — waiver of lien.
In replevin suit by assignee of conditional sale contract covering both truck and dump body, brought against conditional vendee to recover possession of the dump body after vendee, together with assignee and transferee of truck minus the dump body, had executed transfer of interest agreement describing truck but making no reference to the dump body, parol evidence tending to establish that assignee had waived its lien in part and released the dump body from conditional sale contract did not vary any contemporaneously executed instrument, but simply modified original conditional sale contract, and was admissible, and whether assignee had so agreed was question for jury.
2. Contracts — subsequent parol modification — wavier.
Rule that written contract cannot be changed or modified by parol evidence of what was agreed by parties at time of making contract does not preclude subsequent parol modification of written contract, provided it is not one which must be in writing under statute of frauds, nor does it preclude oral agreement to waiver or modify particular provision in written contract.
3. Sales — contracts — subsequent parol modification — burden of proof — jury question.
Contract of sale may be modified by agreement of parties as to any of its provisions, terms, or conditions, such as subject matter thereof, and this modification may be by oral agreement, but person asserting such agreement has burden of proof, and on conflicting evidence, whether contract of sale has been changed, modified, or replaced by new agreement is ordinarily question of fact for jury.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Clarke County; JESSE H. GRAHAM, Judge.
Snow Covington, Meridian, for appellant.
I. It is universally held that oral statements made at the time of the execution of a written contract are inadmissible to alter, vary or contradict the terms of the written instrument.
II. The Trial Judge permitted testimony which would alter, vary or contradict the terms of the transfer of interest agreement. This was improper, and constitutes reversible error.
III. By the terms of the conditional sales contract, title to both the truck and the dump body remained in Burdette Ford Company, and title was transferred by Burdette Ford Company as and when it transferred the conditional sales contract to Commercial Credit Corporation.
IV. Conditional sales contracts and retention of title contracts have been long recognized by this Court. American Hoist Derrick Co. v. Lynn, 167 Miss. 93, 148 So. 351; Burnley v. Tufts, 66 Miss. 48, 5 So. 627; Journey v. Priestly, 70 Miss. 584, 12 So. 799; Mount v. Harris, 9 Miss. 185, 1 Sm. M. 185, 40 Am. Dec. 89; Parker v. Payne, 95 Miss. 375, 48 So. 835; U.S.F. G. Co. v. Northwest Engineering Co., 146 Miss. 476, 112 So. 580; U.S. Motor Truck Co. v. Southern Securities Co., 131 Miss. 664, 95 So. 639; Young v. Salley, 83 Miss. 362, 35 So. 571.
V. Title to the dump body never passed from Commercial Credit Corporation to Long. He had it in his possession when the writ of replevin was served on him, and executed bond for its release.
VI. It is manifest the motion to set the verdict of the jury aside and to grant a new trial should have been sustained, but the Trial Court overruled it.
VII. There was no proper instruction which could have been granted appellee on the trial of the case. The instructions granted were erroneous, for they attempted to submit an issue to the jury when there was no issue to be tried.
A.J. Reese, Quitman, for appellee.
I. We contend that the evidence offered was not to alter, vary and contradict the written contract between the parties, but that said written contract was superseded by a subsequent oral contract between Long, the Burdette Ford Company and a third party, Spencer King, to the effect that Long was to transfer the truck to King. King was to pay the remainder of the notes and Long was to have the body for what he had in the deal. We further contend that these terms were all recognized by the parties and the Commercial Credit Corporation when the parties executed the instrument of writing in the office of the Commercial Credit Corporation describing the truck that was being transferred, without describing the body which was then in Long's possession, and separated from the truck there being transferred.
II. A written contract may be rescinded, altered, varied or repealed by an oral contract subsequently entered into between the parties. 12 Am. Jur., Secs. 402, 405, 428 pp. 981, 983, 1006; 17 C.J.S., Secs. 377-78 pp. 865, 867.
III. The jury verdict was in accordance with the law and the evidence.
IV. The instructions of the Court correctly stated the law.
Appellant, Commercial Credit Corporation, filed this suit in replevin in the Circuit Court of Clarke County against appellee R.B. Long, for the possession of a three-yard water level dump body, for a truck, valued at $300.00. Appellant claimed the right of possession as assignee of a conditional sale contract to appellee which covered both a truck and a dump body. Appellee as conditional vendee contended that appellant released the dump body from the terms of the conditional sale contract, and offered parol evidence to support that defense. The jury rendered a verdict for appellee.
(Hn 1) The property which was sold to Long consisted of both the truck and the dump body, which were described separately. But when Long transferred the truck minus the dump body to King about five weeks later, the transfer of interest agreement, which was executed by appellant, Long and King, described only the truck and not the dump body. Appellant argues that parol evidence could not vary the terms of this instrument. However, it did not relate to the dump body, but only to the truck. Although Long agreed to remain personally liable for the debt along with the transferee, the transfer agreement made no reference whatever to the dump body. So the admission by the trial court of parol evidence, tending to establish the fact that appellant waived its lien in part and released from the conditional sale contract the dump body, did not vary any contemporaneously executed instrument. Such evidence simply modified the sale contract which was executed about five weeks before that. There was a conflict in the evidence as to whether appellant had so agreed, and this was a question for the jury.
(Hn 2) The rule that a written contract can not be changed or modified by parol evidence of what was agreed by the parties at the time of making the contract does not preclude the subsequent parol modification of a written contract, provided it is not one which must be in writing under the statute of frauds. Nor does it preclude an oral agreement to waive or modify a particular provision in a written contract. Nason v. Morrissey, 218 Miss. 601, 67 So.2d 506 (1953). (Hn 3) A contract of sale may be modified by agreement of the parties as to any of its provisions, terms or conditions, such as the subject matter thereof. This modification may be by oral agreement. The person asserting it has the burden of proof, but on conflicting evidence whether or not a contract of sale has been changed, modified, or replaced by a new agreement ordinarily is a question of fact for the jury. 77 C.J.S., Sales, Sections 83-87.
In Whidden v. Davidson, 120 Miss. 769, 83 So. 178 (1919) it was held that parol evidence offered by a conditional vendee of a car to show that the vendor had waived his lien on it by subsequent oral agreement was admissible; that this was equivalent to a subsequent modification of the contract; and that on conflicting evidence the issue should have been submitted to a jury. See also Cragin v. Eaton, 133 Miss. 151, 97 So. 532 (1923). Hence on conflicting evidence here the trial court properly submitted to the jury the question of whether appellant and appellee by oral agreement subsequent to execution of the conditional sale contract modified that contract so as to release from its terms the dump body involved in this replevin action.
Affirmed.
Lee, Kyle, Holmes and Arrington, JJ., Concur.