Opinion
No. 35184.
December 21, 1942.
1. EVIDENCE.
The rule excluding parol evidence to vary or contradict a written instrument applies only in controversies between parties as to and those claiming under them.
2. EVIDENCE.
Oral evidence offered by appellee for purpose of showing that he was an employee of appellant company, and that company by virtue of employment owed him more than amount which company was endeavoring to enforce against him, was not inadmissible on ground that there existed a written contract between appellee and a third party which, according to its terms, would show that appellee was solely in employment of third party during period involved, where third party was not a party to present suit and appellee was not relying on the written contract.
APPEAL from the circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
R.H. J.H. Thompson, of Jackson, for appellant.
Mr. Webb, appellee here, was employed as a salesman by one H.O. Whistler, the said Whistler, by virtue of a contract with appellant, having exclusive sales rights in a designated territory embracing a number of Mississippi counties. The terms of appellee's employment by Whistler were embodied in a written contract entered into on January 2, 1940. Whistler was employed by appellant under the terms of a written contract entered into by and between him and appellant, on July 26, 1937. The contract between Whistler and appellee provided that appellee was in the sole employ of Whistler and that appellee's compensation would be paid solely by Whistler and that appellant was not to be held responsible for the payment of any commissions to which appellee would be entitled and that appellee would make no claims of any kind against appellant. It was provided in Whistler's contract with appellant that Whistler on his own responsibility would employ persons to assist him in making sales of articles manufactured by appellant, such persons to be wholly compensated by Whistler; that appellant would pay certain of Whistler's office expenses and pay commissions to Whistler on all articles sold by Whistler and his (Whistler's) employees. Thus, Whistler employed his own salesman, paying them commissions on orders secured for Whistler by them. Whistler's earnings consisted of the difference between commissions paid him by appellant and commissions paid by him (Whistler) to the salesmen in his employ.
Appellee's defense was based on the contention that he was not an employee of Whistler but all along had been and was an employee solely of appellant, The National Cash Register Company, and that appellant, at the time the action was commenced, owed him by way of commissions on sales made by him an amount of money in excess of his loan indebtedness. Appellee undertook to repudiate the contract entered into with Whistler, defiantly asserting while on the stand that he was repudiating it, and, over appellant's objection, he was permitted to offer evidence by which he sought to vary its terms.
The Mississippi authorities are uniform in holding that, in the absence of fraud, duress or mistake, parol testimony is inadmissible to contradict, vary, or add to the terms of written agreements.
English v. New Orleans N.E.R. Co., 100 Miss. 809, 57 So. 223; Jourdan v. Albritton, 146 Miss. 651, 111 So. 591; Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; J.B. Colt Co. v. Hinton, 143 Miss. 800, 109 So. 856; Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Johnson v. Johnson, 74 Miss. 549, 21 So. 147; Hicks v. Sullivan, 127 Miss. 148, 89 So. 811; Thompson v. Bryant, 75 Miss. 12, 21 So. 655; Dodge v. Cutrer, 101 Miss. 844, 58 So. 208, 100 Miss. 647, 56 So. 455; Patten-Worsham Drug Co. v. Planters' Mercantile Co., 86 Miss. 423, 38 So. 209; J.B. Colt Co. v. McCullough, 141 Miss. 328, 105 So. 744; Natchez Pecan Marketing Co. v. Bramletto, 163 Miss. 596, 143 So. 429; Ismert-Hincke Milling Co. v. Natchez Baking Co., 124 Miss. 205, 86 So. 588.
Harold Cox, of Jackson, for appellee.
This is a replevin suit instituted by the appellant against the appellee in the circuit court of Hinds County, Mississippi, for the possession of a 1941 model Pontiac automobile. The appellant claimed that it was entitled to the possession of said automobile under the terms of a chattel mortgage thereon executed to it by the appellee. The appellee defended on the ground that appellant owed him more than he owed appellant on said mortgage.
Appellee sold National cash registers for appellant, and thereby earned commissions which were due him in excess of the amount due under the mortgage. Appellant required appellee to sign a written contract with its sales representative at Jackson, Mississippi. This written contract was a mere sham insofar as the parties hereto were concerned but the instrument actually contained the terms of the oral contract of employment between appellant and appellee. The sole dispute in this record arises upon the propriety of appellee's proof of the existence of such oral contract with appellant. The appellee was permitted to and did prove the existence of such oral contract and that appellant was indebted to him thereunder in excess of the amount due under such mortgage. It is appellee's contention that there was no violation of the parol evidence rule under such circumstances and the appellant simply contends otherwise.
The rule which forbids the varying of written instruments by parol proof applies only to the parties to the writing.
Whitney v. Cowan, 55 Miss. 626; Rice v. Troup, 62 Miss. 186; Magruder v. Palmer, 109 Miss. 516, 69 So. 498; 1 Greenl. on Ev., Sec. 279; 2 Whart. on Ev., Sec. 923, and notes.
See also 20 Am. Jur. 988; 20 Am. Jur. 957, Sec. 1097; 22 C.J. 1157, Sec. 1554.
Argued orally by R.H. Thompson, for appellant, and by Harold Cox, for appellee.
The controversy here is between appellant and appellee, as of course. Appellee introduced oral evidence to show that he was an employee of appellant company, and that by virtue of that employment the company was due him more than the amount which the company is endeavoring to enforce against him. The company objected to this oral evidence on the ground that there existed a written contract between appellee and one Whistler which, according to its terms, would show that appellee was solely in the employment of Whistler during the period involved. Whistler is no party to the suit and appellee is not relying on the written contract between him and Whistler. The rule excluding parol evidence to vary or contradict a written instrument applies only in controversies between the parties to the instrument and those claiming under them. See 22 C.J., p. 1292, and the numerous cases cited thereunder, including two from this state, both of which are in direct accord with the rule as stated.
Affirmed.