Opinion
No. 38223.
February 25, 1952.
1. Trial — instructions — sales — oral contract.
It is error to grant an instruction which is not based upon evidence, and a material part of an instruction based upon the theory that a contract of sale had been modified by a subsequent oral agreement to the effect that delivery would be made in another manner and at a different plant when there is no evidence to support such part renders the instruction erroneous.
2. Trial — instructions — sales.
The error in the instruction as outlined in the foregoing headnote is not to be held harmless when, as stated, there was no evidence to support the objectionable part and the evidence on the other features of the case was sufficient to support a contrary verdict.
Headnotes as approved by Arrington, J.
APPEAL from the circuit court of Washington County; ARTHUR JORDAN, Judge.
Forrest G. Cooper, for appellant.
I. There was never a valid, oral modification of the written contract. 17 C.J.S., Sec. 377, p. 866.
II. Every claimed oral modification of a written contract must have all of the essentials of a new contract. 17 C.J.S., Secs. 374, 375, 376, p. 859, 860, 863; Wheeler v. Newbrunswick, 29 L.Ed. 341; Owen Tie Co. v. Bank of Woodland, 101 So. 292; Pritchard v. Hall, 167 So. 629, 175 Miss. 588.
III. No oral agreement ever made.
IV. Error in instructions.
V. Measure of damages. American Cotton Co. v. Leander W. Herring, 84 Miss. 706, 37 So. 117; Walker Bros. Co. v. Daggett, 115 Miss. 662, 76 So. 569.
It is evident that the instructions unduly emphasized the silence of the seller and ignored the admitted silence of the buyer. The jury were never told as a matter of law the legal effect of the joint silence of the buyer and seller. The jury were left to conclude that the silence of the seller was equivalent to default on his part. The jury were given the right in one instruction to conclude that there was a supplemental oral agreement fully agreed to in all its respects when there is no evidence that the minds ever met on any new price of ammonia under a new agreement. On the one side, the seller says there was no new agreement or even discussion of one. The buyer claims that a new agreement was attempted and discussed, but they never did get together on a new reduced price as that would have been subject to an amicable agreement or negotiations.
If the appellee should claim that it was our duty to cover this matter in the instructions, we reply that the appellee had the burden of showing this new agreement and assent by all of the parties to all of its terms, and to show a breach of the new agreement. He cannot ignore such fact in his instructions and claim that it was cured by failure of instruction for appellant covering such matter.
Whenever a written contract is duly executed and is full and complete in all of its features, and there is nothing else to be included therein, such written contract becomes binding in all of its terms on both parties. Their minds have met on all of its provisions. If thereafter one party desires to change that contract by making a new agreement, such of course can be done, but if such change is attempted whereby the buyer wants a new price and a new place of delivery, the seller must agree to both changes. Such new agreement cannot be divided into parts. A new agreement is either made in all of its features or not. If the buyer requests the new contract on delivery point and price, he can only get such new contract by having the seller agree thereon. If either feature of the new contract is not agreed on, there is no new agreement.
Smith Jones, for appellee.
I. A new trial will not be granted where a verdict is reached on conflicting evidence unless for clear and manifest error in rulings of the court or where the verdict is against the overwhelming weight of the evidence. Cox v. Tucker, 133 Miss. 378, 97 So. 721.
II. When it is determined on appeal that the appellant is not entitled to a favorable determination in any event, error, if any, in record is considered harmless error and case will be affirmed. Hall v. Hinkle Merc. Co., 159 Miss. 796, 132 So. 751; J.J. Newman Lbr. Co. v. Cameron, 179 Miss. 217, 174 So. 571.
Mrs. Jeanette P. Hill, appellee and plaintiff in the court below, sued the appellant, Rex Nitrogen and Gas Company, in the Circuit Court of Washington County and obtained a judgment in the amount of $2,416.66, from which judgment the appellant appeals to this Court.
The facts briefly stated are as follows: Mrs. Hill was the owner of a farm and mercantile business known as the "Triumph Farms" at Merigold, Mississippi. On July 26, 1948, the appellee entered into a contract with the appellant, Rex Nitrogen and Gas Company, for the purchase of 20,000 gallons of anhydrous ammonia (liquid fertilizer, same to be delivered at Leland, at the plant location, Rexburg, Miss.). Under the terms of the contract, the appellee was required to and did deposit one-third of the contract price, which was $2,000, the balance to become due February 1, 1949. On December 9, 1948, the appellant, by its president, Mr. J.A. Finklea, advised the appellee that the manufacturers of anhydrous ammonia had increased their price in the amount of 3.75 cents per gallon, which increase amounted to $15 per ton (400 gallons). In this letter it was stated "if you are unwilling to pay this increase, you may cancel your order and we will refund your deposit". Upon receipt of this letter, Mr. Hill, the husband of appellee and the manager of the "Triumph Farms", called Mr. Finklea, president of appellant company, over the telephone and told him that the price was too high but that if he would ship the 20,000 gallons of ammonia to Merigold in carload lots, he would pay the increase. According to Mr. Hill's testimony, Mr. Finklea agreed to do this, and the appellee paid one-third of the increase in price of the ammonia, which was an additional sum of $416.66, thus making the total amount deposited by the appellee the sum of $2,416.66. The appellant did not ship the ammonia to Merigold and denied that he was under any obligation to do so as no subsequent oral agreement was made with Hill and that under the original written contract, it was the duty of the appellee to obtain the ammonia at the Rexburg plant. The appellee, not getting any of the fertilizer, called on the appellant to refund her deposit of $2,416.66. This demand was made prior to November 1, 1949. On October 26, 1949, the appellant wrote the appellee a letter advising that it had sold its plant and that since the appellee had not called for the ammonia under the original contract, he was entitled to a refund on his deposit, as it was entitled to its profit on the fertilizer, together with other expenses incurred therein, and tendered to the appellee the sum of $946.66, which was the balance after deducting its profit and expense.
The appellant assigns as error the granting of the following instruction to the appellee: "The court further charges the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that subsequent to the making of the written contract introduced in evidence in this case and made by and between the parties hereto on the 26th day of June, 1948, said parties by oral agreement modified said original contract by which said modification the defendant agreed that the anhydrous ammonia which was purchased from it by plaintiff was to be shipped in car lots to plaintiff directly from the factory to her place of business at Merigold, Mississippi, and further agreed that if for any reason it should be found to be impracticable for said shipments to be made directly to plaintiff from the factory, then defendant would so notify plaintiff and that plaintiff would, in such event, be privileged to obtain said anhydrous ammonia from defendant's plant at Leland, Mississippi, when notified by defendant so to do; and that thereafter no anhydrous ammonia was ever delivered to plaintiff by defendant or by the factory with whom defendant dealt, in car lots or otherwise, and defendant never thereafter advised plaintiff that such delivery would not be made, nor did it call upon plaintiff to obtain said anhydrous ammonia from its plant at Leland, Mississippi, nor give to plaintiff any other notice in reference thereto; and that thereafter plaintiff called upon defendant to refund to her the sum of $2,416.66, which she had deposited with it in partial payment for the purchase of said anhydrous ammonia and that defendant declined and refused to pay same over to plaintiff, then defendant became, was and is liable to plaintiff in said principal sum of $2,416.66 plus interest since November 1, 1949, and it is your sworn duty to so find, and the form of your verdict may be: `We, the jury, find for the plaintiff in the sum of $2416.66 plus interest since Nov. 1, 1949, at the rate of 6% per annum.'"
(Hn 1) The appellant's objection to this instruction is that it is not supported by the evidence. Upon a careful examination of this record we find that there is no testimony or other evidence in the record to support this part of the instruction: "* * and further agreed that if for any reason it should be found to be impracticable for said shipments to be made directly to plaintiff from the factory, then defendant would so notify plaintiff and that plaintiff would, in such event, be privileged to obtain said anhydrous ammonia from defendant's plant at Leland, Mississippi, when notified by defendant so to do * * *" This Court has held that it is error to grant an instruction which is not based upon the evidence. Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; Poteete v. City of Water Valley, 207 Miss. 173, 43 So.2d 112; Gulf Mobile O.R.R. Co. v. Smith, 210 Miss. 768, 50 So.2d 898. In J.W. Sanders Cotton Mill, Inc., v. Moody, 189 Miss. 284, 195 So. 683, 684, Syllabus 8, the Court held: "Where an instruction is framed in the alternative and there is no evidence in support of one of alternatives, the entire instruction is erroneous."
(Hn 2) The appellee argues that if there is error in this record it is harmless and the judgment should be affirmed because the verdict is manifestly right, citing the cases of Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751; Sikes v. Thomas, 192 Miss. 647, 7 So.2d 527; and J.J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571. We do not agree with this contention, as the cases cited are not applicable to the instant case. The evidence in this case as to the subsequent oral agreement is in direct conflict and is sufficient to have supported a contrary verdict, and we are unable to say that the granting of this instruction did not influence the jury in its verdict. We are, therefore, of the opinion that this instruction was prejudicial and constitutes reversible error, and that the judgment should be reversed and remanded for another trial.
Reversed and remanded.
Alexander, Hall, Lee and Kyle, JJ., concur.
ON SUGGESTION OF ERROR. Mar. 17, 1952 (57 So.2d 569).
Appellee insists that, regardless of any error in the instruction set out in our former opinion, it is not controlling for the reason that appellant testified that the market value of the product was, at the time of its breach in July 1949, $145 per ton, which was the price appellee had agreed to pay, and that therefore appellant sustained no loss.
The argument is that, assuming a breach of the contract, it was the duty of appellant, upon breach to dispose of the anhydrous ammonia at the market price, and that, had it done so, it would have suffered no loss of profits and hence is not entitled to any charge against the deposit made with it by appellee.
The testimony on this point is disadvantageous to appellant which offered proof to the effect that, as stated above, the market price at the time of the breach was exactly what, under the theory most favorable to appellant, the appellee was obligated to pay. This view is supported by an agreement of counsel that in July 1949 appellant sold 57,722 gallons of the product at $145 per ton, and in August 10,598 gallons, and as late as September, 7,220 gallons, both at that price.
The issue, however, for the reasons stated in our former opinion, remains open as to whether under a subsequent oral contract, if such there was, it was the duty of Rex Nitrogen Company to make shipments to Merigold, as well as the alleged breach of the original or subsequent contract. Since there was no request by the plaintiff, appellee, for a directed verdict, the duty of the appellant to dispose, with reasonable promptness, of the amount allegedly purchased by appellee, and its right to take any credit to itself for loss of profits as a charge against the deposit, likewise is still in issue.
Appellant in its testimony disclaimed any right to charge the deposit with such items as storage or other overhead expense and rested his counterclaim solely upon an alleged loss of profits.
If the existence and terms of the original and subsequent contracts were made immaterial by a conclusive showing of a violation of a duty on the part of appellant to make reasonable and timely disposal of the products without loss of profits, a serious question would confront appellant. However, we need not, and do not, pass upon this question since the cause was not properly submitted in the instruction and the duty and ability of appellant to save itself from loss is not clearly shown.
Suggestion of error overruled.
Hall, Lee, Kyle and Arrington, JJ., concur.