
    ELLERD v. BELL et al.
    (No. 390-3592.)
    (Commission of Appeals of Texas, Section B.
    March 28, 1923.)
    1. Evidence <§=o44l (9) — Verbal agreement to construct silos held inadmissible in action for purchase price thereof.
    In an action on a written contract for the purchase of certain silo material, wherein defendant claimed that plaintiffs also agreed verbally to construct the silos, evidence as to such verbal agreement was properly excluded: the contract as written being free from ambiguity.
    2. Evidence &wkey;?445(2) — Buyer held entitled to testify as to terms of oral agreement replaced by written agreement breached by seller.
    ' Where plaintiffs sold to defendant certain silo material required by the written contract to be one-piece material, the buyer was not obliged to accept jtwo-pieee material, and, where a new oral contract was made in respect to such two-piece material, the buyer had an absolute right to testify as to the terms thereof; the written contract having been first breached by the seller.
    3. Pleading <&wkey;245(!)— Generally, all amendments must be made before announcing ready for trial.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1824, providing that all amendments to pleadings must, when court is in session, be filed under leave of court, before the parties announce ready for trial, and not thereafter, the general theory is that the parties must finish pleading their cases before announcing ready for trial.
    Certified, Questions from Court of Civil Appeals of Second Supreme Judicial District.
    
      Action by Keller J. Bell and another against J. J. Ellerd. Judgment for plaintiffs on an instructed verdict was reversed on defendant’s appeal and questions certified to the Supreme Court.
    Questions answered as recommended by the Commission of Appeals and ordered certified to Court of Civil Appeals.
    Ocie Speer, of Port Worth, for appellant.
    Dedmon, Potter & Pinnéy and Templeton & Milam, all of Port Worth, for appellees.
   POWELL, J.

This cause is before the Supreme Court upon the following certificate from the Honorable Court of Civil Appeals for th'e Second District:

“Keller J. Bell and Sid R. Clift, doing business under the style of ‘Western Silo Company,’ sued J. J. Ellerd and another upon a written order for certain silo materials, claiming a balance of $1,794.87, with interest. The defendant Ellerd answered by a general denial and specially to the effect that the written order was but a part of a more comprehensive contract; that the contract, as a whole, was to the effect that the silo company was to furnish the material specified in the order at the specified prices, and in addition thereto was to construct the silos in the manner alleged. The defendant further pleaded that the agreement was not complied with neither as to the character of materials furnished nor had the silos been constructed as agreed upon. Upon the conclusion of the evidence, the court peremptorily instructed the jury to find for the plaintiffs in the sum of $2,965.77, and the defendant has appealed.
“The plaintiffs introduced the order for the materials, but upon objection the defendant was not permitted to prove the parol contract for the construction of the silos, etc. In this connection, it appeared that the order had been signed by the defendant in blank, upon the assurance, as the defendant testified, of the selling agent that it was but an order for the materials, defendant at the time understanding that the real contract upon which he acted and which formed the" consideration of his agreement to pay was oral and made prior to the signing of the order. The defendant thereupon asked leave of the court to withdraw his announcement of ready and to amend his pleadings to meet the case in accordance with the facts as developed. This the court refused to do and gave the peremptory instruction 'referred to, to all of which the defendant excepted, and from the judgment which followed, has appealed and here assigns error. '•
“Upon the reasoning and authorities shown in our original opinion, which will be transmitted herewith, we concluded that the court erred in refusing to permit the defendant to withdraw his announcement of ready and to amend his pleadings as he sought to do, and because of the error, or supposed error, reversed the judgment, being further induced to this course by the fact that defendant’s pleadings and evidence, as considered by us, raised the issue that the materials furnished were not as specified. With the indicated conclusions, however, our' associate, Mr. Justice Buck, dissented on the motion for rehearing for the reasons and upon the authorities appearing in his dissenting opinion, also to be transmitted herewith. ‘ Because of such dissent, and being urged thereto, we deem it advisable to certify to your honors, for determination, the following questions:
“(1) Did the trial court, under the circumstances stated, err in refusing to permit defendant to withdraw his announcement of ready for trial and to permit him to amend his pleadings ?
“(2) Did the trial court err in rejecting the testimony offered by the defendant, tending to show that the order was but part-of a larger or more comprehensive contract, partly in writing and partly oral, even in the absence of an amendment of defendant’s pleadings?
“(3) Did the majority err in overruling the motion for a rehearing?”

This suit" was instituted • by the silo company upon the following written contract between it and Ellerd, to wit:

“May 1, 1913.
“Western Silo Co., Des Moines, Iowa: Please ship to me the following goods oh or before at once, 1913, or at your earliest convenience: Point, Hale Center. Mail address, Plain View. R. E. D. No. -. 4 Silos. Diameter 20; height 34; material'1 pc. Eir; price $2,156.00; 1 Cutter. No.-. Mounted, Yes. Et. of pipe 30; price $287.50. Total, $2,443.50. Terms: $300.00 cash; bal. Eeb. 1st, 1914, at 8 per cent, after Oct. 1, 1913; less 10 per cent, discount.
“Bill of lading and settlement papers are to be mailed to the Eirst Nat. Bank of Plain View and I agree to receive the above-mentioned articles.and make settlement in accordance with the terms specified above immediately on receipt of the goods, f. o. b. Hale Center.
“Failure to make settlement as above specified releases the Western Silo Co. from all responsibility and makes the entire amount due.
“Carload rate of freight allowed on silos. Cutters‘f. o. b. nearest distributing point.
“If upon receipt of silo any part is found defective or missing, I will within ten days notify the Western Silo Co. in writing and give them reasonable time to replace all such parts, and at such time as such replacements are made, their responsibility ceases.
“Title to the goods ordered and right to reclaim possession thereof for balance of purchase price shall remain in the name of the aforesaid company, and in case of suit, they shall be allowed reasonable attorneys fees an£ any other costs incurred in prosecuting samé. Venue thereof in Polk county, Iowa.
“This order can only be canceled by purchaser sending the Western Silo Co. draft for 25 per cent, of the purchase price before shipment is made.
“This order is not binding on the aforesaid company until accepted by them in writing at their offices in Des Moines, Iowa, and I agree to hold them blameless if they are unable to make shipment on account of causes beyond their control.
“It is understood that this order constitutes the entire and only agreement between the parties hereto, and the Western Silo Co., will not, under any circumstances, allow any deductions of whatsoever nature not specified in this order.
“If this order is for an ensilage cutter, it is sold subject to the manufacturer’s guaranty, as printed in catalogue.
“[Signed] J. J. Ellerd.
“Salesman: Orady, O. O.
“Accepted. -. Send to Western Silo Oo.
“(Note. — Across the face of said order are the following words written with ink: ‘O. K. Short Credit Dept.’ On the back of said order are the following words written in ink: ‘Received May 8, 1913. Acknowledged and instructions sent.)’”

Upon the trial, counsel for Ellerd offered evidence tending to enlarge the written contract and vary its terms. In the main, Ellerd wished to prove that the silo company, and not its selling agent personally, agreed, as a part of the contract, to erect the silos before payment therefor would become due. The trial court refused all such testimony, and we think correctly so. That the contract as written is free from ambiguity is admitted by all. That being true, and the contract appearing on its face to be a complete contract involving the sale and purchase of silo materials, extraneous evidence of prior parol agreements to the contrary are not admissible in the absence of pleadings which attempt to set the contract aside or vary the same on the ground of fraud, accident, or mistake. This is t;he well-settled law of this state. Our 'Supreme Court laid down the rule in Bigham v. Bigham, 57 Tex. 238, as follows:

“The general rule is nowhere more clearly stated than by Mr. Greenleaf'in his work upon evidence: ‘Where parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of. the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it. was completed, or afterwards, as it would tend, in many instances, to substitute a new and different contract for the one which was really agreed upon, to the prejudice,' possibly, of one of the parties, is rejected.’ 1 Greenl. 275.”

For other opinions to the same effect as the Bigham Case, we refer counsel to the eases of Coverdill v. Seymour, 94 Tex. 1, 57 S. W. 37; Seitz v. Machine Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837; Harper v. Lott Town & Improvement Co. (Tex. Com. App.) 228 S. W. 188; Martin v. Hemphill (Tex. Com. App.) 237 S. W. 550, 20 A. L. R. 984; Eldora Oil Co. v. Thompson (Tex. Com. App.) 244 S. W. 505; White, Ward & Erwin v. Hager (Tex. Com. App.) 248 S. W. 319.

This section of the Commission of Appeals, in opinions by the writer, in the last four cases cited, has had occasion to discuss the so-called “parol evidence rule” in its various phases and collate the authorities. The case of Erwin v. Hager, supra, involved an attempt to ingraft parol agreements ón a contract for the sale and purchase of an automobile. We wrote an opinion answering a certified question from the Court of Civil Appeals at Dallas, holding the evidence inadmissible. Our opinion in that case was adopted by the Supreme Court early in the current month. That opinion is, peculiarly applicable to the case now under consideration.

Justice Buck specifically holds this evidence inadmissible. Chief Justice Conner, for the majority of the court, does not hold it admissible. He held that the trial court abused its discretion in not permitting a withdrawal of announcement of ready by Ellerd, in- order that he might amend his pleadings in such a way as to make the proffered testimony admissible.

The contract signed by Ellerd not only appears on its face to be complete, so .far as he and the silo company were concerned, but it expressly provides as follows:

“It is understood that this order constitutes the entire and only agreement between the parties hereto, and the Western Silo Company will not, under any circumstances, allow any deduction of whatsoever nature not expressed-in this order.”

Ellerd having signed this contract, he must be bound by it in the absence of fraud, accident, or mistake. His pleadings, neither directly nor indirectly, set up any such defenses, or either of them. Therefore, upon such pleadings, the trial court properly excluded the evidence mentioned in the second certified question submitted to this court. We recommend that said question be answered in the negative.

But, while the written order, Under the pleadings before the court, was binding upon Ellerd, it was equally obligatory upon the silo company. It saw fit to breach the contract, in the very beginning, by shipping to Ellerd “two-piece stave silo material instead of one-piece material.” These timbers for the four silos seem to have constituted the major portion of the shipment. At any rate,' under the written order, Ellerd was under no obligation in law to accept this substitute building material. Consequently, the written contract upon this portion of the shipment was breached by the company and a new contract became necessary. This new contract seems to have been made orally and Ellerd had an absolute right to testify as to the terms of such new contract under which he’ agreed to accept this “two-piece fir” timber material. The company claimed this matter was satisfactorily adjusted by a mere reduction in price, but Ellerd wanted to' testify to the contrary and to the effect that he “didn’t want the two-piece stuff at all.” He said the company’s agent told him he could construct it and show him it was as good as the one-piece timbers. Ellerd said he traded for this two-piece stuff on the basis that he would accept this substitute material if the company, through its agent, could construct the silos so as to show him that it was as good timber as what he had ordered. He wanted to testify ■ that the silos were never constructed so as to satisfy him that the two-piece material was as good as whaf he had ordered; that therefore he did not owe for the material covered by the new contract.

It is significant, in this connection, that Ellerd did not mate the cash payment to the company and sign the notes for the deferred payments as provided in the written contract. In other words, there is ample testimony to go before the jury to sustain his contention that all he did was to pay the freight on this shipment and do what he could to help the company show him that this two-piece material was as efficient in the construction of silos as what the written order covered.

W.e think, beyond question, that Ellerd had a right to make this proof, and that the questions of fact, raised by such proof, should have gone to the jury. We' think the trial court improperly permitted this ease to turn upon an'instructed verdict. We are clear in our view that the Court of Civil Appeals entered a correct judgment in reversing the judgment of the trial court and remanding this cause to that court upon this point. And it follows, of course, that we also think the majority of the Court of Civil Appeals did not err in overruling the motion for rehearing filed herein by the silo company. We recommend that the third question be answered in the negative.

In reversing this case upon the point we have- just discussed, Chief Justice Conner uses this language:

“In addition to what we have said bn the subject of amendment, it ,may not be amiss to observe further that, among other things, the defendants pleaded that the material furnished was not as specified, and upon the issues so presented the defendant, at all events, w'as entitled to be heard before the jury.”

Justice Buck does not discuss this last quotation in his dissenting opinion on the motion for rehearing.

Chief Justice Conner, for a majority of the court, reversed the judgment of the trial court for the further reason that he thought the trial court had abused its discretion in not permitting Ellerd to withdraw his announcement of ready for trial in order that he might amend his pleadings so as to break down the written contract. Justice Buck differs on- this point because, in his judgment, “the defendant could not have pleaded any facts in his proposed amended answer which would have been admissible against the written contract and order for the goods signed by him.”

In view of what we have already said, we think this case must be reversed and remanded anyway. It is entirely likely, therefore, that counsel for Ellerd will have every opportunity to amend his pleadings hereafter as he pleases before another announcement of ready for trial. Therefore we do not think it necessary to answer the first certified question propounded. We pretermit any answer as to whether or not the trial judge abused his discretion, under all the circumstances before him, in refusing to stop this trial and permit practically a new case to be pleaded. To say the least of it, the general theory of our law is that parties must finish pleading their cases before announcing ready for trial. The latter part of article 1824 of Vernon’s Sayles’ Civil Statutes of Texas of 1914 reads as follows: "

“All amendments to pleadings, pleas and pleas of intervention, must, when court is in session, be filed under leave of the court, upon such terms as the court may prescribe, before the parties announce ready for trial, and not thereafter.”

CURETON, C. J. The opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the Court of Civil Appeals. > 
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