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Cleveland Refining Co. v. Dunning

Cleveland Ref. Co. v. Dunning, 73 N.W. 239 (Mich. 1897)
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Court
Michigan Supreme Court · State Highest Courts
Decided
December 15, 1897
Judges
Hooker, Other
Citations
73 N.W. 239115 Mich. 2381897 Mich. LEXIS 1227
Disposition
Reversed.
Headnotes
Contracts — Parol Evidence. Parol evidence that a written order for the purchase of goods was given with the understanding that it was to he obligatory only in case the purchaser should be allowed to oancel a similar order previously given to another person is not inadmissible as varying the terms of a written contract.
Summary
Case made from Menominee; Stone, J. Assumpsit by the Cleveland Refining Company against Alonzo Dunning and others for goods sold and delivered. There was a judgment for plaintiff, and defendants assign error.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Hooker

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Hooker, J.

The defendants executed an instrument, of which the following is a substantial copy:

April 7, 1893.

Cleveland Repining Co.

Ship to Dunning Bros. •

P. O., Menominee. County,-. State, Michigan.

F. O. B. Cleveland. Time, April 30,' ’93.

Route,--.

10 bbls. 15 cold test black oil.

Dunning Bros. & Co., Purchaser. No.-. Terms, 60 da. M. J. Walsh, Agent.

This instrument was a blank form presented by plaintiff, and duly filled, as above. The goods having been, shipped and refused, action was brought to recover the price. The defendants sought to show that the blank order was filled out at the solicitation of the plaintiff’s *239 agent, who was then allowed to take it, upon the understanding that it was to be obligatory only in case the defendants should be allowed to cancel a similar order previously given to the Standard Oil Company, but that they were not permitted to do this, and so informed the plaintiff. This was excluded upon the ground that the writing could not be varied by parol. In this there was error. The making and delivering of a writing, no matter how complete a contract according to its terms, is not a binding contract if delivered upon a condition precedent to its becoming obligatory. In such case it does not become operative as a contract until the performance or happening of the condition precedent. Proving this is not an attempt to vary the terms of a writing admitted to have been executed and delivered with the understanding that it should take effect, as was the base in Phelps v. Abbott, 114 Mich. 88 . See Bish. Cont. § 170; Ware v. Allen, 128 U. S. 590 .

The judgment is reversed, and a new trial ordered.

The other Justices concurred.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 19 cases

View all citing references →
1901: 11905: 11909: 21913: 11914: 21915: 21923: 21924: 21925: 11929: 11936: 11941: 11950: 11955: 119012026peak 1909 · 2

Relies on it most ⓘ

  1. Smith v. Mathis140 N.W. 548 (Mich. 1913)
  2. White Showers, Inc. v. Fischer270 N.W. 205 (Mich. 1936)
  3. Reiner v. Crawford63 P. 516 (Wash. 1901)
  4. J. I. Case Threshing Machine Co. v. Barnes117 S.W. 418 (Ky. Ct. App. 1909)
  5. Frischkorn Real Estate Co. v. Hoskins196 N.W. 940 (Mich. 1924)
  6. Wolf v. Megantz151 N.W. 622 (Mich. 1915)

Most recent

  1. Sams v. Feldman68 N.W.2d 780 (Mich. 1955)
  2. Loyal Order of Moose, Adrian Lodge 1034 v. Faulhaber41 N.W.2d 535 (Mich. 1950)
  3. Wetzel v. Roberts295 N.W. 580 (Mich. 1941)
  4. White Showers, Inc. v. Fischer270 N.W. 205 (Mich. 1936)
  5. Sharrar v. Wayne Savings Ass'n224 N.W. 379 (Mich. 1929)
  6. Weber v. Hall Brothers204 N.W. 153 (Mich. 1925)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Ware v. Allen, 128 U.S. 590 (1888) 118
Phelps v. Abbott, 72 N.W. 3 (Mich. 1897) 29

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