Miller Bros. v. Direct Lumber Co. , 207 Ala. 338 ( 1922 )

The action of the court in overruling the defendants' motion for a new trial, is the only question here presented for consideration. The grounds of the motion were stated in very general language, and it may be seriously questioned that the court is required to further inspect the record for the ascertainment of the particular rulings on evidence, of which complaint is made. Moneagle v. Livingston, 150 Ala. 562,43 So. 843. We pass this question, however, without decision, and rest our conclusion upon the matters of merit involved in the appeal.

This litigation arises out of a contract in writing for the sale of lumber by the defendants to the plaintiffs. The contract will appear in the report of the case. Under its terms the lumber was to be loaded by the seller on the cars at Altoona; but the contract was silent as to the question of time of payment. Under such circumstances, the sale will be regarded as having been made for cash. Robbins v. Harrison, 31 Ala. 160; Brady v. Green, 159 Ala. 483, 48 So. 807; Long v. Addix,184 Ala. 236, 63 So. 982; 23 Rawle C. L. 1382. The payment of the purchase price and delivery of the lumber were therefore concurrent acts. It therefore appears the contract was complete; and it is a well-understood rule of evidence that parol proof of oral stipulations or agreements, tending to contradict or vary the written contract, is not admissible. 10 Rawle C. L. 1030; 7 Mayf. Dig. 355, 356; Roll v. Puritan Mfg. Co.,162 Ala. 416, 50 So. 354.

The admission of the proof offered by the defendants would have done violence to this well-established rule, that sought to show that plaintiffs had orally agreed at the time of making this contract that they would come to Altoona and inspect the lumber on the defendants' millyard, and at the time of inspection pay one-half the contract price, and the remainder of the contract price when the lumber was loaded on the cars. Under the terms of such an oral agreement the plaintiffs will be required to surrender one-half of the purchase price without the security of a delivery of any of the lumber, while according to the terms of the written contract, in connection with the rule of law applicable thereto, the delivery of the lumber was to be a concurrent act with the payment of the purchase price. The evidence was properly excluded, and the judgment of the court below will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.