Patton-Worsham Drug Co. v. Planters' Mercantile Co.

Cox, J.,

delivered the opinion of 'the court.

This suit, brought originally in the justice’s court, was tried on appeal in the circuit court. It was for the recovery of the price of “three gross oxidine” ordered by appellee of appellant. The order was made upon a blank, furnished doubtless by appellant, which recites that: “All understandings, conditions, and agreements between the buyer and the salesman must be stated in the order. Yerbal agreements with the salesman and failure to read the terms of the order will not be recognized as a basis for claims.” The verdict was for defendant.

The court permitted the introduction of evidence to show that the sole consideration of the order was a contemporary parol promise made by the agent of appellant that appellee was to be the sole distributing agent of appellant throughout all the territory from Memphis to Vicksburg, and was to receive five per cent on all sales; that this promise had not been kept; and that, in consequence thereof, there had been a total failure of consideration. Evidence was also allowed tending to show that the same inducements were held out by appellant’s agents to other persons in the. territory within which appellee was to be sole distributing agent. The court erred in permitting this evidence to go to the júry on the issue of failure of consideration, which was the sole issue tried by the jury under the instructions given. The order, on its face, expressly excluded all agreements with agents not written therein. The stipulations of the order made it an entire contract, not to be varied by parol. If the same facts had been submitted, under proper instructions, as tending to show fraud in the procurement of the order, and the verdict had been for defendant, we would affirm. Fraud vitiates all things, and may be predicated of promises designed to entrap the unwary, and never intended to be kept, as well as of misstatements of existing facts. Howie Bros. v. Walter Platt & Co., 83 Miss., 15 (35 South. Rep., 216).

Reversed and remanded.