Whitehurst v. FCX Fruit & Vegetable Service, Inc. , 224 N.C. 628 ( 1944 )

DeNNY, J.

There are 113 exceptive assignments of error set forth in this record and obviously it would be impractical to discuss them seriatim.

Exceptions 1 to 35, and 37 to 49, inclusive, were taken during the introduction of testimony on the theory that parol evidence was inadmissible to amend, alter, vary or contradict a written contract, and therefore inadmissible. They present but one point and may be considered together.

A contract (except when forbidden by the statute of frauds) may be partly written and partly oral and in such cases the oral part of the agreement may be shown. Mfg. Co. v. McPhail, 181 N. C., 205, 106 S. E., 672. However, it is the settled rule that a contemporaneous parol agreement is inadmissible to contradict that which is written. Insurance Co. v. Morehead, 209 N. C., 174, 183 S. E., 606; Miller v. Farmers Federation, 192 N. C., 144, 134 S. E., 407; Mfg. Co. v. McPhail, supra; Farquhar Co. v. Hardware Co., 174 N. C., 369, 93 S. E., 922; Cherokee County v. Meroney, 173 N. C., 653, 92 S. E., 616.

The exclusion of parol evidence on the theory that it is inadmissible to amend, vary or contradict a written instrument has no application to subsequent agreements which change or modify the original contract. Insurance Co. v. Morehead, supra; Grubb v. Motor Co., 209 N. C., 88, 182 S. E., 730; Roebuck v. Carson, 196 N. C., 672, 146 S. E., 708; Lane v. Engineering Co., 183 N. C., 307, 111 S. E., 344; Mfg. Co. v. McPhail, supra; McKinney v. Matthews, 166 N. C., 576, 82 S. E., 1036; Freeman v. Bell, 150 N. C., 146, 62 S. E., 682.

The provisions of a written-contract may be modified or waived by a subsequent parol agreement, or by conduct which natúrally and justly leads the other party to believe the provisions of the contract are modified or waived. Mfg. Co. v. Lefkowitz, 204 N. C., 449, 168 S. E., 517; Bixler v. Britton, 192 N. C., 199, 134 S. E., 488. This principle has been sustained even where the instrument provides for any modification of the contract to be in writing. Allen v. Bank, 180 N. C., 608, 105 S. E., 401. It has likewise been sustained where a contract contained a provision to the effect that “No salesman or agent of the company shall have the right to change or modify this contract.” Mfg. Co. v. Lefkowitz, supra.

We think the evidence relative to the extension of the time for delivery of the potatoes under the 1943 agreement, the number of cars to be shipped and the change in grade, was properly admitted. The defendants contend that the acceptance of potatoes from the plaintiffs after 20 June, 1943, has no bearing on the question of waiver as to time of delivery since, as they contend, they were compelled to accept all the potatoes tendered after that date under the terms of the 1941 agreement. We do not so construe that agreement. TLat was a grower’s contract and under its terms tbe FCX Fruit & Yegetable Service, Inc., was not required to accept from J. J. Wbiteburst any potatoes other than those grown by him. There is no evidence that Whitehurst grew more than a small proportion of the potatoes shipped by him and his partner, Eeaves, in 1943, but, on the contrary, the defendants knew Whitehurst and Eeaves were buying potatoes and paying the net ceiling price to the farmers of $2.70 per bag. Furthermore, the testimony of Mr. Hilton, manager of the defendant, FCX Fruit & Yegetable Service, Inc., tends to confirm the contention of the plaintiffs that he agreed to waive the 1943 contract provision as to grade. These exceptions cannot be sustained.

The 36th and 50th exceptions are to the refusal of his Honor to grant the defendants’ motions for judgment as of nonsuit at the close of plaintiffs’ evidence and renewed at the close of all the evidence. The defendants are relying on the inadmissibility of parol evidence to modify the 1943 agreement, to sustain these exceptions, but in view of our decision relative to the admissibility of this testimony, these exceptions cannot be sustained on that ground. However, the defendant, Farmers Cooperative Exchange, Inc., urgently insists that the evidence, if admissible, is insufficient to sustain a verdict against it, and that its motion for judgment as of nonsuit should have been granted.

The mere fact that the Farmers Cooperative Exchange, Inc., owns all the capital stock of the FOX Fruit & Yegetable Service, Inc., and the further fact that the members of the board of directors of both corporations are the same, nothing else appearing, is not sufficient to render the parent corporation liable for the contracts of its subsidiary. In order to establish liability on the part of the parent corporation on such contracts, there must be additional circumstances showing fraud, actual or constructive, or agency. 13 Am. ¿Tur., sec. 1384, p. 1217. Here plaintiffs are relying on agency.

The evidence discloses that the plaintiff Whitehurst, under the grower’s agreement of 1941, executed by him and the FCX Fruit & Yegetable Service, Inc., invoiced potatoes during the 1941 and 1942 seasons to Farmers Cooperative Exchange, Washington, N. C., and that remittances on such invoices or in the payment of drafts on the Farmers Cooperative Exchange, Inc., were made by the FCX Fruit & Yegetable Service, Inc. The evidence is in sharp conflict as to whether or not the plaintiffs were instructed by the defendants to make the shipments in 1943 in the name of the Farmers Cooperative Exchange, Inc., and in 72 instances to make them to it. The 1943 agreement, however, required the plaintiffs to make shipment to any destination requested by the. Cooperative. There is evidence that all written communications from FOX Fruit & Vegetable Service, Inc., to plaintiff in 1943, were written on the stationery of the Farmers Cooperative Exchange, Inc., and that all invoices and bills of lading for the 86 cars of potatoes shipped by plaintiffs in 1943, were mailed to Farmers Cooperative Exchange, Inc., Washington, N. C., and that frequently both defendants were designated by the letters “F.C.X.”; that they had some common employees and that on some occasions the Farmers Cooperative Exchange, Inc., remitted by its check for purchases made by the FCX Fruit & Vegetable Service, Inc. Plaintiffs testified that Mr. Hilton was a common employee and that in dealing with them he had acted as agent for both defendants. Whatever may have been the relationship of the defendants to each other, it is not denied that the invoices and shipments were made as set forth in the statement of facts herein, and no shipment was rejected by the defendants or either of them. We do not think the exceptions to the failure to nonsuit the plaintiffs as to the defendant Farmers Cooperative Exchange, Inc., can be sustained. We think the evidence sufficient on the question of agency to warrant its submission to the jury.

Exceptions 51 to 70, inclusive, are abandoned — Rule 28, Rules of Practice in the Supreme Court, 221 N. C., 563.

The remaining exceptions are to the charge and to the refusal of the court to set the verdict aside and to the signing of the judgment.

We have carefully examined these exceptions and the argument of counsel in support thereof, but we think the charge contains no prejudicial error which would warrant a disturbance of the verdict below.

In the trial below, we find

No error.