
    8705
    MIDLAND ROOFING MFG. CO. v. PICKENS.
    1. Contracts — Parol Evidence. — -A written order for goods is a mere offer and until accepted by the seller may be withdrawn by parol.
    2. Irid. — A special contract is not always a contract by “specialty” and if not so may be made in parol.
    3. Irid. — A written order for goods may be rescinded before acceptance and another contract made in parol.
    Before Prank B. Gary, J., Spartanburg.
    Affirmed.
    Action by Midland Roofing Mfg. Co. v. R..O. Pickens. Plantiffs appeal.
    
      Messrs. J. J. Burnett and Johnson, Nash & Daniel, for appellant,
    cite: A special contract must be in writing: 2 Abbott’s Tr. Br. 1349, 1383; Anderson’s Law Die. 961, 248; Bishop on Con., sec. 104; 9 Cyc. 242.
    
      
      Messrs. A. B. Hill and Botnar & Osborne, contra,
    cite: Parol contract may be substituted for a written one: 79 S. C. 143. Parol evidence is admissible on point on which writing is silent: 68 S. C. 523; 21 Ency. 1094; 21 S. C. 608. Agency may be proved by acts and circumstances: 49 S. C. 345; 48 S. C. 430; 37 S. C. 88. Salesman can bind his principal: 6 Ency. 224; 87 S. C. 197.
    December 25, 1913.
   The opinion of the Court was delivered by

Mr. Justice Fraser.

The plaintiff-appellant alleged in its complaint: “That on or about the 18th day of March, nineteen hundred and ten, plaintiff sold and delivered to the defendant, on account, at his request, goods, wares and merchandise to the value of four hundred and seventy-three dollars, an itemized, verified copy of which account is hereto attached, marked Exhibit A, and made part of this complaint.

“That the said goods, wares and merchandise were reasonably worth the amount therein charged for them, and no part thereof has been paid except the sum of one hundred twenty-two and 82-100 dollars, paid as freight charges thereon, as plaintiff is informed and believes, and there is now justly due and owing to plaintiff from defendant the sum of three hundred and fifty and 18-100 dollars.”

The defendant answered as follows:

II. “Defendant denies each and every allegation in said complaint, except as herein admitted.
III. “For the first defense, the defendant alleges that the goods mentioned in the complaint were delivered by the plaintiff to and received by the defendant upon a special contract between them, whereby plaintiff’s salesman entered into an agreement with defendant on or about the 18th day of March, 1910, to take on consignment one-half car of roofing. This the defendant was to sell for plaintiff and every thirty days remit proceeds of said sales, less defendant’s commissions. Said goods were received on or about the 6th day of April, 1910. That on or about the 22d day of April, 1910, before any part of said goods were sold' and before the time specified in the agreement for the defendant to perform his part thereof, defendant’s storehouse was destroyed by fire, and not by any fault or negligence of defendant, said roofing was destroyed. That the title of said goods were never in the defendant, but in the plaintiff.”

For second defense.

IV. “For second defense, and by way of counterclaim, the defendant alleges that, according to the agreement with said salesman, that said defendant was to pay the freight charged and deduct same from the first sales of roofing before sending any amount to the .plaintiff. That the sum of one hundred twenty-two and 82-100 dollars was paid by defendant as freight charges thereon and as per agreement. That no part of the same has been paid, and the defendant claims that the plaintiff is now due and owing him the sum of one hundred twenty-two' and 82-100 dollars.”

The plaintiff offered in evidence a written order signed by the defendant. The defendant offered evidence to show that on the day the order was signed and before the agent had delivered it to the plaintiff for acceptance, he had notified the agent that he withdrew the order and that then and there he made a new parol agreement by which the plaintiff was to ship' the goods to the defendant upon consignment. The goods were destroyed by fire before any part was sold. The defendant’s evidence was entirely by parol. The plaintiff objected to the evidence on the ground: 1st, that parol evidence cannot be admitted to vary a written contract; 2d, that inasmuch as the defendant had alleged a special contract, that is a contract b3r specialty, he could not prove a parol contract; 3d, that in order to prove rescission, it must be alleged:

1. The general rule is correctly stated that a written contract can not be varied by parol; but here the defendant denied that the writing ever became a contract. Until the writing was signed or acted upon, that is accepted by the plaintiff, it was a mere offer and could be withdrawn. There was no evidence to show that the offer was accepted before it was withdrawn. There was no evidence on behalf of the plaintiff to deny the allegations of the answer. The first ground of objection can not be sustained.

2. The second ground of objection can not be sustained. If a “special contract” always meant a contract by “specialty” this ground of objection might be sustained, but it does not.

In Am. & Eng. Ency. of Law, vol. XXV, pages 1163 and 1164, note, it is said that a special contract is not necessarily a contract by “specialty.”

36 Cyc., page 531, defines a special contract as follows: “A contract with peculiar provisions or stipulations not found in the ordinary contracts, relating to the same subject matter.” Plaintiff had alleged in “quantum meruit” and relied on a written contract. Surely the defendant should be allowed some'latitude if it were necessary.

3. This ground can not be sustained. In Moseley v. Witt, 79 S. C., pages 143-144, 60 S. E. 530, it is said a written contract of sale may be rescinded and a rent contract substituted by parol. Fripp v. Fripp, Rice Eq. 108.

Judgment affirmed.  