Shaw Equipment Co. v. Hoople Jordan Construction Co.

ON MOTION FOR REHEARING

In our main opinion we said, “ * * * the undisputed material facts in this case disclose a situation in which the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove vital facts.” In their motion for rehearing appellees say they do not understand the above statement. We shall amplify our statement.

What we had in mind was the application of the parol evidence rule. In Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958), our Supreme Court said, “The parol evidence rule is not a rule of evidence at all, but a rule of substantive law. * * * When parties have concluded a valid integrated agreement with respect to a particular subject matter, the rule precludes the enforcement of inconsistent prior or contemporaneous agreements.” We believe the facts in this case bring it squarely within the rule quoted above.

It is true that the Supreme Court in Hubacek, following the rule announced in Sections 240(1) (a) and 240(1) (b) in Restatement of the Law of Contracts, Vol. 1, held the evidence in controversy raised a fact question under the circumstances of that particular case, and the judgment of the Court of Civil Appeals was reversed. But as we see it under the undisputed material facts in this case the two above cited sections in the Restatement are not applicable.

The undisputed material facts, as pointed out in our main opinion, are that the conditional sales contract contains these provisions: “Dealer sells to Purchaser and Purchaser buys and acknowledges receipt of the above described property in good order and condition. * * * Said property is sold in its present location and condition and without warranty of any kind.” (Emphasis ours.) Jordan himself testified as follows:

“Q Now, this is the Plaintiff’s Exhibit No. 3, the conditional sale installment contract and the promissory note, it indicates on the face that you signed this individually and as an officer of Hoople Jordan Construction Company, Incorporated — excuse me — on or about the 27th day of July, 1965, * * *—
“A Yes, sir.”
* * * J}c *
“Q Once again, did you read that over before you signed it?
“A Yes, sir.
“Q All right. You weren’t coerced into signing this, * * * were you?
Let the record indicate that he shook his head in the negative.
You signed this voluntarily?
“A Yes, sir.
*842“Q All right. There are some witnesses names appear on this instrument, Frances Minshew, who is she, sir?
“A She is my secretary.”

In our opinion the oral representations and warranties on which appellees rely are altogether inconsistent with the above quoted provisions, therefore we are barred by rules of law from giving said alleged parol representations and warranties any weight.

A case in which the facts are similar in some respects to the facts in this case is Avery Co. of Texas v. Harrison Co., 267 S.W. 254 (Tex.Comm’n App.1924). In the Avery case it was held that the seller of farm machinery was not bound by the verbal representations of its agent, which representations were inconsistent with the terms of the written contract of sale. See also Miami Petroleum Co. v. Neal, 333 S.W. 2d 876 (Tex.Civ.App., El Paso 1960, writ ref’d n. r. e.); Kingsbery v. Phillips Petroleum Co., 315 S.W.2d 561 (Tex.Civ.App., Austin 1958, writ ref’d n. r. e.).

In 88 C.J.S. Trial § 155 p. 302 (Note 15 (1)) it is said, “Rule that terms of written instrument cannot be varied by parol is substantive law, not merely a rule of evidence, and the legal effect cannot be avoided even though parol evidence be admitted without objection.” In support of the above statement the following Texas cases are cited: Steve Lynn Motor Co., Inc. v. Pavelka, 371 S.W.2d 928 (Tex.Civ.App., Waco 1963, no writ); Patton v. Crews, 264 S.W.2d 467 (Tex.Civ.App., Fort Worth 1954, writ ref’d n. r. e.); Ross & Sensibaugh v. McLelland, 262 S.W.2d 205 (Tex.Civ.App., Fort Worth 1953, writ ref’d n. r. e.); Great Nat. Life Ins. Co. v. Presley, 129 S.W.2d 730 (Tex.Civ.App., Amarillo 1939, writ dism’d).

In the trial court appellees relied on the holding of our Supreme Court in Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957) as authority for admitting parol evidence in this case notwithstanding the terms of the written instrument. The holding in that case is not in point here. At page 241 of the opinion in the Reaves case it is stated that the chattel mortgage was executed before the purchaser discovered that the machinery would not perform as represented; and immediately after delivery of the machinery and discovery by the purchaser that it would not perform as represented, the purchaser repudiated the contract by stopping payment on his check and taking other steps looking toward rescission. That situation is a far cry from the situation in this case. Here we have a situation where Hoople Jordan himself testified that for about fourteen months before signing the mortgage appel-lees used the machinery and knew it would not perform as represented. And following the signing of the mortgage appellees kept the machinery and continued to use it for many months more. Then appellees sought to repudiate their contract only when they were sued because they were in arrears in their payments.

In Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.Sup.1963) our Supreme Court reaffirmed the principle that a party to a contract has an obligation to protect himself by reading what he signs and, without a showing of trickery, or artifice, may not avoid the instrument on the ground he did not know what he was signing. And a failure to exercise reasonable diligence is not excused by mere confidence in the honesty and integrity of the other party. In support of this holding the Supreme Court cites Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1958) and Indemnity Ins. Co. of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553 (1937).

Appellees’ motion for rehearing is overruled.

BATEMAN, J., not sitting.