Wayne Oil Tank & Pump Co. v. Claxton Oil Co. , 32 Ga. App. 530 ( 1924 )

Bloodwortti, J.

.(After stating the foregoing facts.) It is apparent from the record in this case that when the representative of the Claxton Oil Company met the agent of the Wayne Oil Tank & Pump Company in Atlanta on June 26, 1922, and the two had a conference, each decided that so far as the sale of the tank, pump and fixtures was concerned, he would “let the dead past bury its dead.” This is shown by the fact that they proceeded to draw a written contract in which it was stated that “this proposal of purchase shall not become effective or binding until it is accepted or confirmed by said company [plaintiff] at its home office in Port Wayne, Indiana;” that “there are no agreements not mentioned herein, and all the terms and specifications have been distinctly understood;” and that “all agreements between the parties hereto are covered by this order, and that same are not subject to countermand by the vendee.” (Italics ours.) ' This order contained all the elements of a sale. It identified the articles sold, named the price thereof, and the consent of the parties thereto is shown by their signing it. Civil Code of 1910, § 4106. That each party recognized this as a complete contract is shown also by the fact that in their pleadings each claimed that the other breached it. It is apparent not only from the plea of the defendant, but from the evidence that defendant’s representative, Saunders, signed the contract, a duplicate of which was given him at the time, “without apprising himself of its contents otherwise than by accepting representations made by the opposite party,” and it' does not appear that between him and the other party there existed any “fiduciary or confidential relations,” of that “at the time he signed it some such emergency existed as would excuse hís failure to read it, or that his failure to read it was brought about-by some misleading device or artifice amounting to actual fraud.” Tinsley v. Gullet Gin Co., 21 Ga. App. 512 (2), (94 S. E. 892); Barnes v. Slaton Drug Co., 21 Ga. App. 580, and eases cited on pages 581, 582 (94 S. E. 896); Twyman v. Avera Loan &c. Co., 23 Ga. App. 136 (98 S. E. 239). The case of Arnold v. Malsby, 120 Ga. 586 (48 S. E. 132), is somewhat like this one, and in that case the first heaclnote is as follows: “All previous verbal negotiations respecting the terms of sale of certain machinery are merged in the subsequent written contract of sale, and are inadmissible to vary or contradict the writing. Smith v. Newton, 59 Ga. 113 (5).” In Chicago Building Co. v. Summerour, 101 Ga. 820 (29 S. E. 291), Justice Little said: “If he signed the written agreement without reading it, and it did not contain the contract as in fact made, or if he was induced to enter into the agreement by fraudulent promises on the part of the agent, he was only deceived by such promises in consequence of his own neglect to read the terms of the written contract to which he subscribed. The defendant had full opportunity to inform himself as to the terms of the instrument. Had he taken the precaution to do so, he would have been protected against the imposition alleged to have been practiced upon him. His negligent omission to inform himself as to the truth of the representations or their binding force defeats an impeachment of his contract upon grounds as to which the exercise of reasonable care would, in the first instance, have protected him.” See also Equitable Mfg. Co. v. Biggers, 121 Ga. 381 (49 S. E. 271); Butler v. Standard Guaranty & Trust Co., 122 Ga. 371 (50 S. E. 132); Case Threshing Machine Co. v. Broach, 137 Ga. 602 (73 S. E. 1063). When the written order was accepted by Wayne Oil Tank & Pump Company it became a complete contract of sale, binding each party (Black v. Maddox, 104 Ga. 157, 161, 30 S. E. 723), and by its terms not subject to countermand. Notwithstanding this writing it is insisted that the purchaser countermanded the order before the goods were shipped, and for this reason should not be required to pay for them; but “what is writ is writ.” Without a lawful cause, “a written contract cannot be abrogated by one of the parties without the consent of the other.” Phosphate Mining Co. v. Atlanta Oil &c. Co., 20 Ga. App. 660 (6), 662 (93 S. E. 532); Draper v. Ga., Fla. & Ala. Ry. Co., 21 Ga. App. 707 (95 S. E. 16), and cases cited. The defendant further insists that the plaintiff breached the contract by not shipping the goods “in accordance with said order,” and “within a reasonable time.” To support this contention the defendant relies upon certain telegrams which passed between the parties several days prior to the signing of the written order and a conversation held between the representatives of the plaintiff and the defendant in Atlanta on the day the contract was signed. From what has already been said -in the discussion of this case, and from the authorities cited, it will readily be seen that the written contract was made without reference to these telegrams and independent thereof, and that they can play no part in the determination of the case; and therefore they were improperly admitted in evidence. Even if the conversation to which we have hereinbefore referred were not by the express terms of the contract merged therein or extinguished thereby, it would be so considered under the law. Rauschenberg v. Peeples, 30 Ga. App. 384 (118 S. E. 409); Holman v. Georgia Railroad, 67 Ga. 595.

As the contract was a valid one, was not breached by the plaintiff, and could not be countermanded by the defendant, and as the telegrams were erroneously admitted in evidence, the judgment must be Reversed.

Broyles, O. J., and■ Luke, J., concur.