
    THE INNER SHOE TIRE COMPANY, Appellant, v. KNAPP BROWN & COMPANY, Respondent.
    (163 N. W. 572.)
    (File No. 4083.
    Opinion filed June 26, 1917.)
    Evidence — Sales—Order for Goods, Whether a Sale? — “Shoes” to he Vulcanized hy Consignee for Use hy Third Parties— Oral Evidence, Admissibility.
    Where defendant gave plaintiff an order for certain “inner shoes,” being linings for auto wheel casings, which goods were received hy defendant, held, that oral evidence was properly admitted against objection that it contradicted terms of the written order; such evidence tending to show that orders for such “shoes” had already been taken hy plaintiff from various auto owners, that defendant, hy means of its vulcanizing outfit, was to install such linings for plaintiff, collect amounts due from those who had ordered the “shoes,” and remit the proceeds to plaintiff after deducting defendant’s compensation; defendant -having the right, under the contract (which was wholly oral), to return -to plaintiff such “shoes” as were not accepted by those ordering same; that the -giving of such orde/r by defendant. was not inconsistent with, defendant’s claim that the contract was one of consignment of the goods to it to handle as agent of ¡plaintiff; the order not necessarily evidencing .a sale. Janssen v. Muller, 38 S. D. 61'1, 162 N. W. 393, distinguished.
    Appeal from the Municipal Court of ¡the City of Sioux Falls. Hon. Alpha F. Orr, Judge.
    Action by The Inner Shoe Tire Company, against Knapp Brown & Company, to recover for value of goods shipped 'by plaintiff to defendant under a written order. From a judgment for defendant, ¡and' from an order denying a new trial, plaintiff appeals.
    Affirmed.
    
      Morris & Caldwell, for Appellant.
    
      Bailey & Vóorhees, and P. G. Honegger, for Respondent.
    (i) To point one of the opinion, Appellant ¡cited: Civ. Code, Sec. 1239; .De Rue v. McIntosh, 26 S. D. 42, 127 N. W. 532; Gail Mfg. Co. v. Finkelstein, (Tex.) 59 S. W. 571; Cameron Coal & Merc. Co. v. Octave Block et ah, (Okla.) 31 L. R. A. (N. S.) 618; Ohio Electric Eight Co. v. Wisconsin-Minnesota Light & Power Co., (Wis.) 155 N. W. 112; Ady^ v. Barnett, (Wis.) 124 N. W. 1061; Jaekowski v. 111. Steel Co., 103 Wis. 448, 454, 79 N. W. 757.
    
    Respondent submitted that: Exhibit “2” is not a contract, but merely a shipping instruction; (2) -that the real contract between the parties was the oral agreement between appellant agent, Hall, and respondent, and that Exhibit “2” was merely a shipping instruction designating the place -where the merchandise was to be shipped; (3) that there never waá a contract of sale intended either by the respondent ¡or by Hall; and cited-: Civil Code, Secs. 1251, 1249, 1256, 1258; National Cash Register Company v. Piaster, 5 S-. D. 143; Sioux Remedy Company v. Eindgren, 130 N. W. 49 (S. D.) ; De Rue v. McIntosh, 26 S. D. 42; Babcock v. Deftord & Co., 14 Kan. 408; Kimm v. Welters, 133 N. W. 277 (S. D.); MeCaskey Register Co. v. Hall, 117 N. W. 1124 (Iowa); Crook v. Pind-anque, no N. Y. S. 198; Bi-ooks Co. v. Wilson, 105 N. E. 607 (Mass.) ; Walker v. France," 5 Atl. 208 (Pa.); Chapin v. Dobson, 78 N. Y. 74; Head v. Miller, .48 N. W. 192 (Minn.) ; Phelp-s v. Whitaker, 37 Mich.- 72; Welz v. RhodiuS', 87 Ind. 1; Harris v. Marsh, 217 Fed. Rep. 555 (C. C. A. 8th Cir.).
   WHITING, J.

Plaintiff brought this action to recover an amount which it claimed to be due for goods shipped, defendant under a written order, which order was in words and figures as follows:

Order No. 142. Aug. 17, 1914.

Inner Shoe Tire Company.

Ship to Knapp Brown & Co., at Sioux Falls, S. D.

How ship: Fgt. When: At once.

Terms: 5%. iod. 30 net.

Red Inner Shoes.

4 -32x3>4 ................................$ 6 75 '$ 27 00

8 33X4 .................'................. 9 25 74 00

1 34x4 .................................. 9 25 9 25

1 35x4^ ................................ 11 75 11 75

4 36x414 ................................ 11 75 47 o°

2 37x4^ ................................ 12 50 25 00

4 37x5 ................................... 14 00 56 00

35% discount. 230 00

250 00

Will send list.

Buyer: Knapp Brown & Co.

'Salesman: C. F. Flail.

Defendant, answering, admitted the giving of the order and receipt of the goods, but denied that the transaction between plaintiff and defendant amounted to a sale and purchase of said goods, and-alleged -that said goods were consigned to defendant to be handled by the defendant for the plaintiff. Upon the trial the plaintiff 'introduced the written order in evidence, proved that the goods were shipped to and received by defendant, and "that defendant had- not paid for same. Over plaintiff’s objection that it was incompetent because -it tended to contradict -the terms of the written order, defendant offered and there was received oral testimony tending to' prove -that the goods were consigned and not sold to defendant. Verdict and judgment were for the defendants. From such judgment and- an order denying a new •trial this appeal was taken.

The only question requiring our attention is whether the trial court rightfully admitted' the oral testimony received on behalf of the defense. The question presented to us is not the right to prove, by oral evidence, a collateral contract, as was the question in Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512. Neither is it the question of a right to prove surrounding circumstances to assist in the construction of a contract, the question passed on in Janssen v. Muller, 162 N. W. 393. Neither is the question before us the broad question of the right of a party to prove all the terms of a contract, where hut a part thereof 'has been reduced to writing, though this appeal might undoubtedly be disposed of under the well-established rule in relation .thereto. The sole question we care to consider is whether the proof received tended to contradict the written order. Let us suppose that, as a matter of fact, an arrangement had been entered' into1, as testified, to by respondent, under which arrangement appellant was to ship to-respondent, the owner of a vulcanizing outfit, the “Inner Shoes,” the same being linings for auto wheels casings, orders for which had already been taken by appellant from various owners of autos-; respondent, by means of its vulcanizing outfit, was to install such linings for appellant; respondent was to collect the amount due from the parties Who had ordered- such “Shoes” and remit the amount collected, -less the discounts which it should retain as its compensation; and respondent could return -to appellant such “Shoes” as were not accepted by those ordering same. Such being the relation of the parties, would it be inconsistent therewith for respondent to send in this order? T-bi-s writing was not the contract. The contract was wholly oral. Neither party had any thought 'of reducing the contract to writing or of preparing any memorandum evidencing the nature of the contract and thus establishing, in writing, the relation of the parties. To carry out this oral contract, this written -order was sent appellant by respondent. It is a printed form prepared by appellant. By it appellant was advised of what goods should be shipped, and respondent was advised of the list price of the goods and- the discounts to be allowed it, as well as of the time within which it was to account for any sums that might become due to- appellant. There was nothing in the writing that necessarily evidenced a sale — nothing inconsistent to respondent’s -claim -that the contract was one under which the goods were to be consigned to it to handle as the agent of appellant. Pam v. Vilmar, 54 How. Prac. (N. Y.) 235.

Let us suppose that respondent had failed- in business and appellant was now seeking to- regain possession of such “Shoes” as still remained -in .possession -of respondent.- Could- it be claimed that, on account of this written order, appellant would be estopped from proving that respondent was merely the agent of appellant to whom appellant was consigning these goods- for disposition on a -commission? Certainly not. Head v. Miller, 45 Minn. 446, 48 N. W. 192.

A case -peculiarly like this one was that of Babcock v. Deford, 14 Kan. 408. Plaintiff sued upon a written order similar to this, an-d the trial court admitted testimony tending to -prove that such order was sent pursuant to the terms of an oral -contract' which -contract contemplated a -conditional sale; -defendant to have a right to return such goods as remained unsold at end of six months. In the -course of the opinion- we find the following -language, which is very pertinent to the facts -before us:

“The writing does not -in term-s assert -an absolute purchase, or -contain an express promise to pay. True, the law will, in the absence of other testimony, u-pon a receipt of the goo-ds, imply a promise to pay; hut this is not -a necessary inference from the language, and might be changed ib-y extrinsic -circumstances. T-hu-s, if the -defendants were -only co-mm-i-sison merchants seeking consignments, known to- be such by plaintiff, the course of business might be such between the parties as to justify the inference that tha-s was 'but an application for a consignment, with limit as to price and time.”

The judgment and order appealed from are affirmed.  