Opinion
No. 29999.
May 16, 1932. Suggestion of Error Overruled, October 3, 1932.
1. CONTRACTS.
Parties, after making written contract, may enter into enforceable parol contract in addition to or in waiver of original contract.
2. FRAUDS, STATUTE OF.
In controversy between parties to written contract, executed parol agreement to waive provision may be shown.
3. EVIDENCE.
Parol evidence to prove assent of party to substituted mode of performance of original contract, when such performance is completed, is admissible.
4. CONTRACTS.
In building contractor's action for extras contracted for orally, wherein owner admitted liability for part of amount claimed, and claimed damages as offset, court improperly excluded contractor's evidence regarding extras.
APPEAL from circuit court of Bolivar county. HON.W.A. ALCORN, Judge.
Somerville Somerville, of Cleveland, for appellant.
If parties make a written contract one day and the next day have a verbal contract the verbal contract is just as good as the written contract and each contract sets aside the preceding contract if necessary.
Insurance Co. v. Sheffy, 71 Miss. 923-924; New Orleans Ins. Assn. v. Matthews, 65 Miss. 301, 4 So. 62; Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 7 So. 596; Home Ins. Co. v. Scales, 71 Miss. 975, 15 So. 134; Home Ins. Co. v. Gibson, 72 Miss. 58, 17 So. 13; American Fire Ins. Co. v. First National Bank, 73 Miss. 469, 18 So. 931.
The defendant Delta Pine Land Company relied, in the court below, upon section 526 of the Code of 1930, contending that the plaintiff could introduce no evidence because the plaintiff had failed to file a copy of the contract with the declaration. Our position was that it was obviously unnecessary for us to file a copy of the contract when the party to be informed already had the contract and we did not have it.
Where a statute requires certain instruments to be exhibited, it is sufficient excuse for failing to so exhibit them to allege possession in the adverse party, or that the papers are lost.
Encyclopedia of Pleading Practice, volume 8, page 739.
The statute of frauds debars one of an action on a contract in certain cases, unless the contract be in writing; but a parol agreement to annul or waive a particular stipulation in the written contract which has been mutually assented to and fully performed may be offered in evidence in defense of an action for a breach of the original written contract. An action may not be maintained, in cases within the statute, upon a contract not in writing; but a defense may be made by showing an executed parol agreement waiving or annulling a particular provision of the contract.
Lee v. Hawks, 68 Miss. 669.
It appears to us very plainly that the plaintiff relied upon the parol agreement in the Lee case and paid no attention to the written contract; which is exactly what we did as to the additional items sued for and which were not in the original contract.
Sillers Roberts, of Rosedale, for appellees.
Appellant did not comply with sections 526 and 527 of the 1930 Code of Mississippi, in that he did not annex to, nor file with the original petition, a copy of the writing on which the claim was founded.
We objected to any testimony offered under the contract because appellant had not complied with these two sections of the Code. The court suggested to counsel for appellant that the petition could be amended by annexing a copy of the contract to the petition. But counsel did not move the court orally or in writing for leave to amend his declaration, and the court did not grant leave to plaintiff to amend his declaration, either orally or in writing and the minutes of the court do not show that any such order was ever entered and in fact no such order was entered, and therefore the petition remained just as if no amendment had been made.
Counsel for appellant in the trial of this case in the court below referred to the rule of law which is now relied upon to obtain a reversal of this case. If we assume that counsel for appellant is correct in his statement of the law when he says that a written contract may be later modified by parol agreement, and that this rule of law is not changed by the contract providing that it can only be changed by a writing, still the evidence which appellant was seeking to introduce is not admissible.
The McDonnell Construction Company has no standing in court until it has annexed to, or filed with the petition a copy of the contract on which its action is founded. The very rule of law that the appellant is relying on is enough to show that appellant has not met the requirements of sections 526-527 of the 1930 Code of Mississippi.
Insurance Company v. Sheffy, 71 Miss. 923.
The oral contracts which appellant was seeking to prove, were changes or modifications of the original contract, and therefore he was not entitled to prove these changes or modification until the original written contract was annexed to or filed with the petition under sections 526 and 527 of the 1930 Code of Mississippi.
Pages 914 and 915 of vol. 6, R.C.L., sec. 299.
If a written contract is modified by subsequent oral agreement, an action must be brought on the contract as modified.
Sec. 2484, et seq. of vol. 4, Page on the Law of Contracts; sec. 2494 of the same volume of Page on Contracts.
Appellant in his brief next argues that the trial judge was in error in not permitting the appellant to introduce evidence as to the amount due under the original written contract entered into by and between the Delta Pine Land Company and the McDonnell Construction Company. Counsel entirely overlooks section 526 and section 527 of the 1930 Code of Mississippi.
Before the petition could be amended by annexing to it a copy of the contract it was necessary that a written motion be filed with the court, and it was also necessary that the court give its consent for the amendment by a written order duly entered on the minutes of the court, as the court only speaks through its minutes.
Lackey v. Railroad Company, 102 Miss. 339, 59 So. 97; Gill v. Lumber Company, 153 Miss. 559, 121 So. 154; Oliver v. Miles, 144 Miss. 852, 110 So. 666.
Whatever of the writing sued on is material to the sufficiency of the declaration must be set forth by proper averments.
Marshall et al. v. Hamilton, 41 Miss. 229; Home Insurance Co. v. Newman, 147 Miss. 237, 111 So. 455; Lawson et al. v. Dean, 144 Miss. 309, 109 So. 201.
One of appellant's assignment of errors was that the court erred in refusing to grant the appellant the continuance requested in order that the appellant could procure the blue prints demanded by the appellee, and we presume that counsel's argument in support of the assignment of error is to be found on page 11 of his brief.
The court is not required to suspend proceedings to accommodate litigants who are in default or who have not exercised proper diligence.
Flynt v. Fondren, 84 So. 188, 122 Miss. 248.
The matter of granting a continuance rests on the sound discretion of the trial court.
Soloman v. State, 71 Miss. 567, 14 So. 461; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Cox v. State, 138 Miss. 370, 103 So. 129; Sanders v. State, 141 Miss. 289, 105 So. 523; Continental Insurance Co. v. Brown, 142 Miss. 199, 106 So. 633.
The McDonnell Construction Company filed its petition to enforce a materialman's lien, for a balance due it as contractor in the construction of two dwelling houses, against the Delta Pine Land Company, as owner, and in said petition set out that certain other parties had served notice, claimed liens, and were interested parties in the subject-matter of the suit. Attached to the petition was an exhibit, being a written bid by the McDonnell Construction Company, and also an unsigned specification for the construction of the buildings. The petition alleged that under this bid and these specifications the buildings were constructed. In effect, the plaintiff alleged that certain extras in said construction were orally contracted for by the parties subsequent to the original contract, and were due to it and unpaid, and sought judgment for these extras as well as other items, and sought to have a lien therefor enforced.
The Delta Pine Land Company's answer set up a written contract for the construction of the buildings involved, signed by the parties, in which contract reference was made to the plans and specifications as part of the contract. The specifications and contract were attached as exhibits. Attention was called to the fact that the blueprints or plans were not attached, but were in the possession of the McDonnell Construction Company and should be produced as a necessary part of the contract. In its original answer the defendant agreed that six items sued for in exhibit "F," attached to plaintiff's petition, were correct and were extras aggregating eight hundred twenty-eight dollars, for which the owner was properly chargeable for extra work done and material furnished by the contractor in addition to that called for under the plans and specifications, and then set up by way of set-off, or recoupment to, or extinguishment of, certain items, and certain alleged defects in the performance of the original contract. Deducting these claimed credits, the Delta Pine Land Company admit an indebtedness of one hundred forty-one dollars and eighty-eight cents. Among other things set up in the answer was a plea of the statute of limitations of one year as against the enforcement of the lien. The answer denied that the original contract had been performed in accordance with its terms, as had been alleged in the original petition.
McDonnell Construction Company replied to the plea of the statute of limitations by setting up that the suit had been brought within twelve months from the date when the last payment was due under the contract, and again set up that it was entitled to a judgment at law for the amount due it, if the court should determine that the suit to enforce the materialman's lien was barred.
Before the hearing the court ordered a separate trial of the issue as between McDonnell Construction Company and Delta Pine Land Company to determine the amount, if anything, due the McDonnell Construction Company. On the hearing McDonnell was offered as a witness, and testified that the contract for the extras was oral and not in writing, but he was forced to admit that the original contract filed as an exhibit to the Delta Pine Land Company's answer was signed by him. Thereupon the court held, after listening to the speeches set forth in the record, that appellant, the plaintiff in the court below, would not be permitted to offer any evidence in the case because the written contract was not attached to and made a part of his original petition, and therefore, in virtue of section 526 of the Code of 1930, no evidence could be heard relative thereto. Upon the suggestion of the court, counsel for the appellant had the contract and specifications marked "filed," but did not have entered an order of the court allowing this amendment, nor did he in terms state that he was amending his petition. The blue prints were not attached, and thereupon the appellee objected to any evidence because of the absence of the blueprints. It was then elicited from the witness McDonnell that he had the blueprints in Memphis, and he asked for time to have them brought into court, which was refused. The court thereupon granted a peremptory instruction for the defendant, and from the judgment entered thereon McDonnell Construction Company prosecutes an appeal to this court.
We have concluded that it is our duty to reverse and remand this case for the reason that the Delta Pine Land Company had admitted by its answer that it was due at least one hundred forty-one dollars and eighty-eight cents to the McDonnell Construction Company, and further admitted that it was due the construction company for extras, that is, items of construction that were not embraced in the original contract, the sum of eight hundred twenty-eight dollars. To the excess of one hundred forty-one dollars and eighty-eight cents it offered a defense which in part set up the written contract. If it were true that the liability for extras accrued by virtue of an oral contract, certainly upon these items the case was at issue, even though the appellant had not made the written contract an exhibit to his petition. In so far as these items are concerned, it is clear that the written contract was involved only, according to the appellant's theory of the case, as a matter of defense to the appellee. It is not controverted that, even though parties have made a written contract, they may thereafter enter into a parol contract in addition to or in waiver of the original contract, and such an oral contract not in violation of law may be enforced by the parties.
In the case of M.B. Lee v. A.E. Hawks, 68 Miss. 669, 9 So. 828, 13 L.R.A. 633, this court held that, in cases within the statute of frauds, an action cannot be maintained upon a contract not in writing; but, in a controversy between parties to a written contract, an executed parol agreement to waive a particular provision in the contract may be shown. In the same case this court further held that one in possession of land under a written lease for a term of years, who has the right by the contract to cut timber, but who, for a valuable consideration, waives this right, is liable in damages for timber afterwards cut on the land, though the waiver is by parol. Judge WOODS quoted with approval the following from Benjamin on Sales, p. 229: "Parol evidence to prove, not a substituted contract, but the assent of the defendant to a substituted mode of performance of the original contract, when that performance is completed, is admissible."
To state the case presented to us simply, it is this, plaintiff sued the defendant for certain extra work and extra material furnished in a building contact, which he says was contracted for orally. Defendant answers, yes, we were liable for a certain part of the amount claimed, specifying the items, but we do not now owe it because we incurred certain damage which is an off-set or recoupment, or extinguishment of a part thereof, as shown by a certain written contract. The court declined on this state of facts to permit evidence as to the extras, and awarded the defendant a judgment. This was reversible error.
There are many other matters adverted to in the argument before us, but we are of opinion that it is now unnecessary for us to consider same because we are of opinion that, when the case goes back for trial, these matters will most likely be eliminated.
Reversed and remanded.