Opinion
No. 29957.
October 3, 1932.
1. EVIDENCE.
Oral promise of marketing association's agent that association would pay for pecans on delivery could not modify written contract.
2. EVIDENCE.
Principal, not knowing, when approving written contract, of agent's representation, could rely on stipulation that no oral representations were made.
3. AGRICULTURE. Circular letter exhibited by agent when making contract with member, regarding financing, did not authorize agent's representation that association would pay for pecans when delivered.
Facts were that, during negotiations between marketing association's agent and prospective member, agent exhibited circular letter stating that association had arranged complete grower financing through Farm Board and banks, but this letter did not authorize oral representation claimed to have been made by agent that association had money then in bank to pay for pecans and would pay for them on delivery, so as to bind association.
APPEAL from circuit court of Wilkinson county. HON. R.L. CORBAN, Judge.
Lotterhos Travis, of Jackson, for appellants.
In spite of the plaintiff's claim that he was told there was sufficient money in bank, which the record completely shows was true if stated, the plaintiff admits that he had before him the written bulletin or letter prepared by the National Pecan Marketing Association, which simply shows that financial arrangements were made with the federal farm board and the intermediate credit banks not for the purpose of paying any particular grower for his pecans but for the purpose of enabling marketing to be carried on by the association, which the evidence clearly shows was done.
The rule that the terms of a written contract or conveyance cannot be varied or added to by parol evidence is not merely a rule of evidence, but is one of substantive law, and, in measuring the rights of the parties to a written contract or conveyance, which, on its face, is unambiguous and expresses an agreement complete in all its essential terms, the writing will control.
Kendrick v. Robertson, 145 Miss. 585, 111 So. 99.
A written contract may not be varied by parol evidence.
Jourdan v. Albritton, 146 Miss. 651, 111 So. 591; Ismert-Hincke Co. v. Natchez Baking Co., 124 Miss. 205, 86 So. 588; Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; McCall Company v. Parsons Company, 107 Miss. 865, 66 So. 274.
Ordinarily where an agent has authority to execute a complete contract for its principal, and does so, it may be avoided if the agent made fraudulent representations to induce the signature or execution of the contract. But where the contract shows on its face that it is not to be executed by the agent for the company, but is to be sent to the company to be approved by some officer or manager of the company, and the purchaser represents in his contract that no representations have been made to him other than that contained in the contract, the company has a right to rely upon such stipulation by the purchaser.
J.B. Colt v. Odom, 136 Miss. 651, 101 So. 853; J.B. Colt Company v. McCullough, 141 Miss. 328, 105 So. 744; J.B. Colt Company v. Hinton, 143 Miss. 800, 109 So. 856; Tropical Paint Oil Co. v. Mangum, 155 Miss. 876, 125 So. 248; Perrault v. White Sewing Machine Co., 157 Miss. 167, 127 So. 271; Stevens v. Stanley, 153 Miss. 801, 121 So. 814; Brenard Manufacturing Company v. Sumrall, 139 Miss. 507, 104 So. 160; J.R. Watkins Company v. Poag, 154 Miss. 222, 122 So. 473.
Clay B. Tucker, of Woodville, for appellee.
Actionable fraud may be predicated upon a misrepresentation of solvency or financial condition.
26 Corpus Juris, 1183.
Representations as to the speaker's financial condition, where made as positive statements of fact may, where the other elements of fraud are present, constitute remedial fraud, as where they induce the extension of credit.
Hiller v. Ellis, 72 Miss. 701, 18 So. 95, 41 L.R.A. 707; Clopton v. Crozart, 13 Smedes Marshall, 363, 369; 27 C.J. 1184.
To constitute fraud it is unnecessary that a statement be made with the intention of deceiving, if it is a statement of fact.
Markowsky v. Rubenstein, 124 Miss. 724; McNeer Dodd v. Norfleet, 113 Miss. 611, 74 So. 577, Ann. Cas. 1918E, 436.
Where a person has been induced by fraudulent representations to enter into a contract, he may retain what he has received, and bring an action at law to recover damages sustained.
Bowrey v. Mutual Loan Society, 79 So. 389, 202 Ala. 51.
One induced to enter into a contract by reason of false representations has the right either to rescind the contract because of the fraud, in which case he need not prove that the defendant had knowledge of the falsity of the representation; and where it is doubtful whether the representation is as to a matter of fact or a mere opinion, the question is for the jury.
Hockensmith v. Winton, 66 So. 954, 11 Ala. 670.
In case of actionable fraud in inducing plaintiff to sell his property, where there is no credit for rescission or recovery of the specific property, the measure of damages is the difference between the value of the property and the price paid.
Brown v. Lyon, 81 Miss. 438; 27 C.J. 92 (242).
The very representations of fact made by Smith to the effect that appellants had actually procured this specific money were contained in a written circular placed in the hands of Smith, by appellants; again the representations of fact as to the prices already paid by the appellants for property similar to appellee's were contained in a price list placed in the hands of Smith by appellants. Appellants admit this and they have repeatedly admitted that at the time they placed this circular in the hands of Smith and authorized him to deprive appellee of his property, appellants had not procured the specific money or any money as represented by them or in their circular placed in the hands of Smith or as represented by Smith.
Appellee immediately disaffirmed the void contract and demand the return of his property as soon as he learned that the representations of fact on which his property was procured, were not true and is entitled to an affirmance of the judgment of the lower court.
Whittington v. Cottam, 158 Miss. 847, 130 So. 746.
This record sustains every element of action of fraud.
26 C.J. 1062.
Where one entered into a contract under fraudulent representations, when he discovers a fraud, he may repudiate the contract and sue for deceit.
Prest v. Farmington, 2 A.L.R. 1390.
The appellee recovered a judgment against the appellants for a balance alleged to be due him on the value of pecans alleged by him to have been sold and delivered to them. The appellants, Natchez Pecan Marketing Association and National Pecan Marketing Association, are closely allied, co-operative pecan marketing associations, and one of the activities of the appellee is the growing of pecans for the market.
The case presented by the pleadings, and to which the evidence was pointed and the jury instructed, is, in substance, as follows: The appellee sued the appellants for the value of pecans alleged by him to have been sold and delivered to them, less the amount of a payment made to him thereon. The appellants pleaded in bar a special contract under which the pecans were delivered to be sold by them and the proceeds thereof accounted for to the appellee, which sale, at the time of the trial, had not been consummated. In avoidance of this plea, the appellee claims that the contract is void for the reason that it was obtained from him by means of material, fraudulent representations made to him by an agent of the appellants. The question presented to the lower court for decision was the validity vel non of this contract.
At the close of the evidence, the appellants requested, but were refused, an instruction directing the jury to return a verdict for them.
The negotiations for the contract were had by the appellee with an agent of the appellants, resulting in his reading, understanding, and signing the contract in duplicate, both copies of which were then forwarded to the appellant Natchez Pecan Marketing Association, for its acceptance and approval. It accepted, approved, and signed the contract, returning one of the signed copies thereof to the appellee.
The contract is an ordinary co-operative marketing contract by which a grower becomes a member of the co-operative association and agrees to deliver pecans grown by him to the association, which thereupon becomes the owner thereof and is obligated to make the grower certain advances on and to sell the pecans, together with pecans of other members of the association, to the best advantage, selling only such quantities at one time as will not tend to flood the pecan market and lower prices, and to account to the grower for the proceeds of the sale.
The false representations which the appellee claims the agent of the appellants made to him, and which induced him to sign the contract, were: First, the appellants then had on deposit in bank funds sufficient to enable them to pay for the pecans; and, second, the appellants had been receiving and paying to growers certain designated prices for pecans, which prices would be paid the appellee for his pecans on their delivery to the association. We will assume that the appellee's evidence supported these contentions, and will leave out of view the evidence of the appellants to the contrary. The alleged promise of the appellants' agent that they would pay for the pecans on the delivery thereof is in direct conflict with the written contract, and, of course, cannot be permitted to modify its terms.
One of the stipulations of the contract is as follows: "The parties agree that there are no oral or other conditions, promises, covenants, representations or inducements in addition to or at variance with any of the terms hereof; and that this agreement represents the voluntary and clear understanding of both parties fully and completely."
The evidence discloses no authority from the appellant to its agent to make any such representation; and, when the Natchez Pecan Marketing Association received and approved the contract, it did not know of the representations alleged to have been made to him by its agent, assuming for the purpose of the argument that such were in fact made, and therefore was entitled to rely on the stipulation of the contract that none such had been made. Colt Co. v. Odom, 136 Miss. 651, 101 So. 853; Stevens v. Stanley, 153 Miss. 801, 121 So. 814; J.B. Colt Co. v. McCullough, 141 Miss. 328, 105 So. 744; J.B. Colt Co. v. Hinton, 143 Miss. 800, 109 So. 856.
During the negotiations for the contract, the appellant's agent exhibited to the appellee a circular letter from the National Pecan Marketing Association, which, under the arrangement of the two associations, was to do the actual marketing of the pecans, setting forth that it had "arranged for complete grower financing through the Federal Farm Board and through the Federal International Credit Banks;" and this letter, the appellee claims, authorized the representation made to him by the appellant's agent that they had the money then in bank with which to pay for the pecans. There is no merit in this contention, for the letter simply stated that the National Pecan Marketing Association had arranged for complete grower financing, not that it then had the money therefor in bank.
The appellants' request for a directed verdict should have been granted.
Reversed, and judgment here for the appellants.