Colgate v. . Latta , 115 N.C. 127 ( 1894 )

CLARK, J., dissents. In Cumming v. Barber, 99 N.C. 332, it is said that "if it appear that the entire agreement was not reduced to writing, or if the writing itself leaves it doubtful or uncertain as to what the agreement was, parol evidence is competent, not to contradict, but to show and make certain what was the real agreement of the parties, and, in such case, what was meant is for the jury under proper instructions from the court."

Mr. Abbott in his work on Trial Evidence, p. 294, says: "In the present state of the law, the rule excluding parol to vary a writing in its application to commercial sales amounts to little more than this principle, viz., that where the parties, or their agents, have embodied the terms of their agreement in writing, neither can, in an action between themselves (unless impeaching the instrument), give oral evidence that they did not mean that which the instrument, when properly read, expresses or legally implies, or that meant something inconsistent therewith. In more detail, the rule and its established exception may be stated thus: A written instrument, although it be a contract within the meaning of the rule on this point, does not exclude oral evidence tending to show the actual transaction in the following cases: (5) Where the (135) language of the instrument leaves its meaning doubtful, or extrinsic facts in evidence raised a doubt as to its application; (6) where it appears that the instrument was not intended to be a complete and final statement of the whole transaction, and the object of the evidence is simply to establish a separate oral agreement in a matter as to which the instrument is silent, and which is not contrary to its terms nor to their legal effect."

The plaintiffs insist that there was a contract between them and the defendants by which the latter agreed to purchase from them 100 boxes of soap at $3.40 per box, and the plaintiffs agreed to sell to them such a lot of soap at that price.

They contend that the writing, "Exhibit A," contains the entire agreement between the parties here, and that its meaning is free from doubt and ambiguity, and that the only evidence needed to maintain this action was proof that the defendants signed their names on said writing after the word "Accepted," and that the plaintiffs thereafter shipped to them 100 boxes of Octagon soap.

There is not about this instrument that absolute certitude of meaning which is required to enable a court to declare exactly what the agreement of the parties actually was by a bare inspection of the writing. It is, of course, true that it is of the utmost importance that where contracts have been thus evidenced the parties should be held bound by their written statement of what their agreement was. This principle has always been considered "one of the greatest barriers against fraud and perjury," and its abrogation or impairment would produce very great evils. It should not be construed away or the exceptions to it multiplied to avoid the seeming hardship of particular cases.

But, while this is true, it must also be conceded that the writing to which such importance is to be attached must be explicit and (136) complete. Wherever there is no uncertainty in the written words, their meaning is to be determined, as a matter of law, by the court, and the legal consequence of the execution of the writing is to be adjudged as soon as the execution of it is admitted or proved. Wherever there is uncertainty in the written words, either because of ambiguity or incompleteness, it is for the jury to determine what was the agreement of the parties, and, in the trial of that issue, extrinsic evidence is proper, and, indeed, necessary.

The writing upon which the plaintiffs rely in this action (Exhibit A) seems to us ambiguous and uncertain. We do not here have reference to the terms in which the price of the soap is expressed, which, the plaintiffs themselves seem to grant, clearly require explanation, but to the fact that in it there is not explicit statement either that the plaintiffs have sold to the defendants 100 boxes of soap, or that the defendants have bought from the plaintiffs that quantity of goods. In it their salesman directs Colgate Co., to ship to Latta Myatt certain goods. There is in the order a place for the name of the purchaser, which is left blank. At the bottom of the order is the word, "Accepted," followed by the signature of the defendant firm. As soon as this document is attentively examined, there arises a doubt as to its meaning. The fact that such a doubt arises is an assurance that an explanation of it is necessary, that requires the introduction of extrinsic evidence, and makes an issue for the jury to decide.

While parties, by reducing their commercial contracts to writing, may make their obligations so binding that the law, upon mere proof of the execution of the instrument, will adjudge the rights of those who are thus careful to fix the memorials of their agreements, they must use skill in the composition of such writings, and must carefully avoid all uncertainty of expression, for, as we have said, such ambiguity in the writing necessarily lets in parol, or, to speak accurately, extrinsic (137) evidence to explain away the ambiguity, and by this means the good purpose of the writing is defeated, not by the fault of the law, but by the unskillfulness or carelessness of the parties themselves. Because of this ambiguity in this writing we think it was proper to admit extrinsic evidence to show that the plaintiffs did not agree, by their agent, to sell to the defendants 100 boxes of soap, and that the defendants did not agree to purchase that quantity, but that, as the writing itself discloses, that number of boxes was to be shipped to the defendants, for some purpose not set out in that instrument, but which the extrinsic evidence shows, and the jury have found, was that they should turn over one-half of the lot to Norris Bro., this last named firm and the defendants being the real purchasers under this contract, each buying one-half of the soap.

The extrinsic evidence which his Honor admitted over the objection of the plaintiffs did not, in our opinion, tend to contradict the writing, and was competent. This ruling disposes of all the exceptions.

The record shows that when the plaintiffs opened their case they themselves deemed it necessary to introduce evidence extrinsic to the written memorandum in order to support their demand against the defendants and to show that they had shipped the goods (100 boxes soap) to defendants, because they had agreed orally to purchase that number of boxes. Having thus opened the way for such evidence, they should not be allowed to object to the defendants being permitted to meet that extrinsic evidence with evidence of like kind. However, we do not think the plaintiffs' able counsel committed an error on the trial of the case before the jury, but rather that the view they seem then to have taken of this writing was a correct one.

No error.