Opinion
12848
February 28, 1930.
Before SHARKEY, J., County Court, Florence, November, 1929. Affirmed.
Suit by Edward F. Hart, trading as the National Engraving Company against Mrs. B. Harrison, trading as The Hat Box. Judgment was entered for plaintiff on a directed verdict and a new trial denied, and defendant appeals.
The contract involved in the case is as follows: "National Engraving Company
"154 Nassau Street, New York
"You are hereby authorized to furnish the undersigned one single-column cut and reading matter weekly for our exclusive use in advertising the Millinery Ladies Ready-to-Wear business in the City of Florence, State of South Carolina only, for a term of not less than one year from commencement of service, and thereafter until notified in writing to discontinue same, for which we agree to pay to your order at New York the sum of two dollars ($2.00) and postage for each cut. Payments to be made at the end of each calendar month.
"Type matter of ads herein referred to as `reading matter' is not part of the electrotypes.
"This agreement does not include the cost of newspaper advertising and is entirely independent of any arrangement subscriber may make with any newspaper.
"It is agreed that all provisions are embodied in writing herein and that there is no verbal agreement of any kind whereby the terms hereof can be changed or modified in any manner whatever.
"One interchangeable base will be furnished free to subscriber except for postage.
"Dated May 18th, 1928.
"Name: The Hat Box by Mrs. B. Harrison.
"Address
"To prevent errors, fill this out in ink and write name and address plainly."
The allegations of fraud in the answer were as follows:
"II. That prior to the execution of the instrument sued upon and its delivery, the plaintiff through his representative and agent, represented to the defendant:
"(a) That he personally had been to the offices of the Morning News Review, a newspaper published in the City of Florence, County of Florence, and State of South Carolina, and that he had ascertained that the one single column cut, described in the instrument set forth in the complaint, could be run in said newspaper at the cost of thirty (30c) cents per inch for each insertion; that this sum was the customary charge by the newspaper aforementioned for advertising space in said publication.
"(b) That the single column newspaper cut to be furnished to this defendant would not be in excess of two by four (2x4) inches, and that this space would be all inclusive and amply sufficient to contain space for the name of the Hat Box, defendant's trade name."
The order of Judge Sharkey in the County Court is as follows:
"This is an action which was brought by plaintiff against the defendant for the recovery of the amount due under a certain written contract, entered into between the parties on May 18, 1928. The defendant has answered, and having admitted in her answer the execution by her of the alleged contract, she has by way of affirmative defense alleged fraud on the part of the plaintiff in procuring said contract.
"The contract under consideration contains the following language: `This agreement does not include the cost of newspaper advertising and is entirely independent of any arrangement subscriber may make with any newspaper.'
"The following provision is also included in the contract:
`It is agreed that all provisions are embodied in writing herein and that there is no verbal agreement of any kind whereby the terms hereof can be changed or modified in any manner whatever.'
"The case came on for trial at the November term of this Court, and upon the authority of the case of J.B. Colt Co. v. Britt, 129 S.C. 226; 123 S.E., 845, a verdict was directed for the plaintiff.
"The matter now comes up on motion made by defendant for a new trial, the ground of the motion being that the issue of fraud in procuring the contract should have been submitted to the jury.
"At the time the case was tried, and the direction of a verdict for plaintiff was ordered, I entertained very little doubt as to the correctness of the ruling so made, and when the matter came up under the motion for a new trial, I was still of the opinion that the direction of the verdict for the plaintiff was proper under the law and the facts of the case. The matter, however, has been earnestly argued by counsel for the defendant, who relied very strongly, in his argument before me, upon the case of Continental Jewelry Co. v. Kerhulas, 136 S.C. 496; 134 S.E., 505, and I have therefore very carefully considered the case, last mentioned, in connection with the defendant's motion for a new trial.
"In the consideration of this matter two familiar and well-established principles of law are involved: One is the general rule that parol testimony cannot be introduced to vary or contradict the terms of a written instrument. The other proposition is that actionable fraud will vitiate a contract. The question for determination here is whether or not, admitting for the sake of argument that there was evidence of fraud on the part of plaintiff, the defendant, under the ruling in the Britt case, supra, was guilty of such negligence as would preclude her from relying on this defense. It appears from the testimony that the defendant not only was capable of reading and understanding the terms of the contract, but that she actually read the contract, and that she has had considerable business experience. It seems to me that in failing to make an effort to verify the statement made to her by the representative of the plaintiff when there was available to her an opportunity of doing so, she was guilty of such inattention and disregard of her duty to protect her own interests in the transaction that she should be precluded from asserting her right to avoid the contract on the ground of fraud. If the means of ascertaining the truth of the agent's alleged fraudulent statement had not been available to her at the time the result, it seems to me, would have been different, but having failed to exercise this opportunity for the protection of her own interests, I do not think she should now be permitted to introduce parol evidence which would vary or contradict the terms of the written instrument which she executed.
"It is therefore ordered that the motion for a new trial be, and it is hereby, refused."
Mr. W. Marshall Bridges, for appellant, cites: Cases distinguished: 129 S.C. 226; 134 S.E., 505. Right to rescind: 150 S.C. 43; 125 S.C. 332; 115 S.C. 426. As to false representation: 134 S.E., 507; 128 S.C. 107; 149 S.E., 278.
Mr. Wm. H. Smith, for respondent, cites: Estoppel: 123 S.E., 845; 109 S.C. 78; 78 S.C. 419; 92 S.E., 861; 101 S.C. 221; 144 S.E., 83. Cases distinguished: 134 S.E., 505.
February 28, 1930. The opinion of the Court was delivered by
This suit, in the civil Court of Florence County, was on an account growing out of a written contract, which will be reported. There was a directed verdict in favor of the plaintiff, who is the respondent here. The defendant's motion for a new trial was refused. The appeal is from the direction of verdict and the refusal to grant the new trial asked for.
Upon a careful examination of the record, it is our opinion that the order of Judge Sharkey, refusing the motion for a new trial, sufficiently covers the issues involved in the case, and properly disposes of all the exceptions. It will be reported. The judgment below is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, STABLER, and CARTER concur.