Montana Flour Mills Co. v. Lawrence ( 1923 )

Fellows, J.

On April 5, 1920, defendant purchased from plaintiff 10,000 barrels of Montana flour (also called Judith flour) ; 4,805 barrels of flour were shipped, leaving 5,195 barrels undelivered. After considerable of the flour was shipped a controversy arose between the parties as to the quality of the flour and on August 18, 1920, Mr. Brown, plaintiff’s agent, came to Lansing where defendant resides and conducts his business and a settlement was effected between the parties and the following written contract was entered into:

“Chicago Office:

“105 North Clark Street, Date 8-18-20.

“Contract No...........

“Montana Flour Mills Company of Lewistown, Montana.

“Sell(s) and G. E. Lawrence & Son of Lansing, Mich., buy(s) the following commodities on the terms and conditions stated herein:

“Time of shipment: September October. “Destination: Lansing.

“Routing: Grand Trunk or N. Y. C.

“Terms of Payment: a-draft. Draft with Bill of Lading attached.

“Through Lansing State Savings.

“Prices in this contract are for delivery to carrier at shipping point, with freight allowed to Lansing on basis freight rate in effect on date of sale.

“Quantity Commodity Packages Brands Priceperunit

(Wood,

(Bbl., .Ton (Flour, Cotton, (Bbl., Ton or

orCwt.) feed, etc.) etc.) Cwt.)

Size Kind Judith 12.70 2,200 Bbl. Flour Bulk. 1401b. Jute Flour Bulk.

“This order cancels 4,395 Bbls. on old contract. “This contract is made subject to terms and conditions printed on back hereof, which terms and conditions are binding on both parties to the contract.

“Montana Flour Mills Company By F. M. Brown, Seller “G. E. Lawrence, Buyer By CHL.

.“This contract is subject to confirmation by the seller “Confirmed by

“Montana Flour Mills Company By

“Date Aug. 18-20.”

It seems to be the claim of the defendant that the words “This order cancels 4,395 Bbls. on old contract” were inserted in the writing after the parties had signed it but with the assent of both parties. Thereafter 3,000 barrels of flour were shipped by plaintiff to defendant; 2,200 were accepted and paid for and 800 were rejected. The rejected flour was sold by plaintiff at a loss which this action is brought to recover for.

Upon the trial it was sought to show by parol proof that it was agreed between the parties at the time the settlement was made that all the old contract upon which there was still undelivered 5,195 barrels was canceled. This proof was rejected by the trial judge upon the grounds that it tended to change and vary the terms of a written contract. This ruling presents the principal question in the case as with such evidence excluded it became the duty of the trial judge to direct a verdict for the plaintiff. The insertion of the words noted after the signing of the contract with the assent of both parties made these words a part of the written contract and it did not require another signing to accomplish such purpose.

In Vidvard v. Cushman, 35 Hun (N. Y.), 18, it was said:

“It is urged that the new lease is not binding, because it was not re-signed by the lessors and redelivered. The added stipulation was written in the lease by one' of the lessors in the presence, and with the assent of the lessee. The signatures of the contracting parties were then upon the lease. This was a good execution of the new or modified lease. (Bluck v. Gompertz, 7 Exchq. 862; Woolley v. Constant, 4 Johns. 54: Knapp v. Maltby, 13 Wend. 587; French v. Patton, 9 East, 351; Leake’s Law of Contracts, pp. 814, 815.) The transaction between the parties, as found by the court, amounts to a re-execution and re-delivery of the lease in its modified form, and it became as binding in that form as though it had been re-drafted and re-signed. Re-writing or re-signing, or both, would have added nothing to its validity.”

There is no ambiguity in the contract and no fraud is charged. It is said1 that there was a mistake, but the mistake claimed is that it was agreed orally to cancel the entire old contract while the written contract cancels all but 800 barrels of the old contract. It must be borne in mind that this is an action at law, not a suit in equity to reform a contract on the ground of mutual mistake. It is also urged that the expression is but the statement of a fact and not a part of the agreement and for this reason parol proof is admissible. We can not agree with this contention. It is agreed on all hands that the.parties met to settle the differences growing out of the old contract; it is agreed on all hands that this contract was executed to finally settle such differences; therefore the disposition of the old contract — how much should be canceled and how much retained, whether all or part of it — was of the very essence of the contract. Counsel for defendant have made a most ingenious argument, but the cold fact remains that this was an offer of parol proof to change and vary the unambiguous terms of a written contract. The trial judge correctly excluded the proof. The law on this subject is too well settled to need citation of authorities.

Complaint is also made because the trial judge would not permit defendant to show that certain shipments were applied on the new contract. We do not perceive that this fact was of any importance in the case. It would in no way affect our conclusion on the main question which is controlling. Besides that, the price in both contracts was the same and both contracts were counted on.

The judgment will be affirmed.

Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.