This is an action upon two promissory notes. The defendant set up a counterclaim for damages alleged to have been sustained on account of the failure of the plaintiff to furnish certain fertilizers in accordance with the terms of the contract between the said parties. The appeal is from an order directing a verdict in favor of the plaintiff. *Page 239
The plaintiff introduced in evidence the following instrument of writing:
"7. This contract, to be binding upon us, must be approved by one of the executive officers of this company. All previous communications between us, either written or verbal, with reference to the subject matter of this contract, are hereby abrogated, and no statements or representations on your part, or of any agent of yours, or of any agent of ours, nor any modification of this agreement, shall be binding upon us, or either of us, unless the same shall be in writing duly accepted by you and approved by an executive officer of this company.
"For own use — You are to give us a security for the payment of this fertilizer, and also as security for the payment of your two notes, dated April 7, 1915, for $196.50, due Sept. 15, 1915, and Oct. 1, 1915, for $196.89, which are renewals of my 1914 notes, a lien on your crop of cotton and cotton seed to be planted by you on 50 acres of land, Goodland township, Orangeburg county, S.C. belonging to D. A. Thaxton and known as the Brodie place; this lien being subject to rental of $100.00 Yours truly, Savannah Guano Co. (in print), per J.J. Condon. Approved: To B.T. Fogle, Springfield, S.C. Savannah Guano Company, Savannah, Ga. I accept your contract on the terms set forth in the foregoing. (The above in duplicate.) B.T. Fogle."
When the said instrument was offered in evidence by the plaintiff, the name of B.T. Fogle was not on it, as this signature had been cut off by the plaintiff and returned to him, but the plaintiff kept the agreement.
The following is the testimony of the defendant, B.T. Fogle, also the rulings of his Honor, the presiding Judge:
"I operated a farm during 1914 and 1915 of about five horses, and bought fertilizer during the former year from the respondent, through his salesman, Mr. Conlon; my entire transaction being with him, having given him my order, and *Page 240 the respondent having shipped the goods. I gave him a note for 1914. I made plenty of cotton, but could not get any sale for it, selling a few bales at 5 and 6 cents a pound. I tried to give him cotton for my account, but he refused it and came to see me, towards the end of the year. I had the cotton in the warehouse, and he told me that, if I would pay him what money I could from the sale of my cotton, he would sell me fertilizer for 1915 and carry the balance of my 1914 account. This arrangement was made before I paid him any money. Pursuant to this, and relying upon it, I paid him $280 or $240.
"Q. What was your arrangement with Mr. Conlon at that time? A. I told Mr. Conlon that I would not be able to pay him the whole amount, but that I was going to pay him what I could, and he said to pay him what I could and he would carry the rest over, and furnish me fertilizer the next year. Mr. Friday: We object; I don't think that would be competent, unless he shows Mr. Conlon's connection with the company, and that he had authority to make these arrangements. The Court: He has shown that Mr. Conlon is a salesman. Mr. Friday: He is testifying here to an oral contract. Mr. Lide: Mr. Conlon was the only agent that he knew as representing the company. The question of agency would be a question for the jury. The Court: I think that question might be a question for the jury. The contract that you put in about the sale of fertilizer is a contract in writing. Mr. Summers: That is a contract in writing between the parties and would be competent. Q. When was this conversation with Mr. Conlon? A. That was in March. The Court: It seems to me that, when this agreement was reduced to writing, that would be the contract. Mr. Lide: The witness testified that he told Mr. Conlon that he would raise all the money that he could, and Mr. Conlon then said that he would let him have the fertilizer. The Court: I think that the contract was reduced to writing, and that is the only thing to be considered here. In that view the testimony *Page 241 would have to be excluded as incompetent. He says that this was in March before the written agreement, and all these agreements were done away with by the written contract. Mr. Lide: The point that we wanted to get at was that this April contract was the result of this agreement that they had in March. * * * The Court: Whatever agreement they had was done away with and merged in this written contract. * * * Mr. Williams: We want to show that he told him that he would sell him the fertilizer. The Court: I think that might tend to contradict the terms of the written contract."
A the conclusion of the testimony, his Honor, the presiding Judge, said:
"Mr. Foreman and gentlemen of the jury, a motion has been made in this case asking the Court to direct a verdict on the ground that there are no issues of fact in the case which you are to pass upon. Under the view that I take of the testimony and evidence which has been introduced, there is only one conclusion to be drawn from the testimony as to the amount due by the defendant to the plaintiff upon the notes sued upon and the amount sued upon in these two notes is $537.52. The right of the defendant to recover upon his counterclaim depends upon the construction placed by the Court upon the written contract or order for sale of fertilizer dated April 13, 1915, and, under the view that I take of the case and of this contract, it is necessary for the defendant to show that this written order or contract was approved by one of the executive officers of the company before the defendant can recover upon his counterclaim. I find no testimony in the case tending to show that this contract or order of April 13, 1915, was ever approved by any executive officer of the plaintiff company, and I, therefore, direct you to find a verdict for the plaintiff for the sum of $522.13."
*Page 242The defendant appealed upon the following exceptions:
First. "His Honor erred, it is respectfully submitted, in ruling that conversations and negotiations and transactions leading up to the giving of the order for the fertilizer were inadmissible; whereas, he should have held that they were not contradictory, and that they were pertinent, especially when the answer pleaded that the entire scheme on the part of the agent and representatives of the plaintiff was advised, for the purpose achieved, knowingly, and that such conduct was negligent, wilful, and fraudulent, the cause of action presented in the counterclaim being not only for the failure to furnish the fertilizer, but based upon representations of the plaintiff's agents that the fertilizer would be furnished, the defendant was misled to his injury, appellant having contracted with the agent within the apparent scope of his authority for the fertilizer."
Second. "His Honor erred, it is respectfully submitted, in holding that the oral contract merged into the written application, and that the oral agreement could not be established; whereas, he should have held that the question of the oral agreement and the misrepresentation and deception as to the entire transaction were questions for the jury, and should have been submitted."
Third. "His Honor erred, it is respectfully submitted, in directing a verdict on the ground that there was no testimony for the jury; whereas, he should have submitted the case to the jury, and allowed them to pass upon the issues raised by the pleadings, especially so when the testimony developed the issues of waiver, fraud, and agency."
Mr. Friday, the plaintiff's attorney, interposed the following objection to the testimony of the plaintiff:
"We object. I don't think that would be competent unless he shows Mr. Conlon's connection with the company, and that he had authority to make these arrangements."
His Honor, the Circuit Judge, did not sustain this objection, but excluded the testimony on the ground that whatever previous agreement the parties may have had was done *Page 243 away with and merged in the written contract. The written contract was introduced in evidence by the plaintiff, who made use of it for the purpose of destroying the previous agreement between the parties. The plaintiff thus recognized it as a binding and existing contract, thus enabling the defendant also to rely upon those provisions that conferred rights upon him. After the contract had subserved the plaintiff's purpose, the plaintiff could not change front and ask for a nonsuit, on the ground that it had not approved the contract, and that it was, therefore, a nullity.
When his Honor, the Circuit Judge, reached the conclusion that the contract was without force and effect, the defendant had the right to rely upon the previous agreement unless there was some other objection to it.
For these reasons, I dissent.