Harriss, Magill & Co. v. Latham-Bradshaw Cotton Co.

129 S.E. 525, 143 Va. 811, 1925 Va. LEXIS 306

• Court: Supreme Court of Virginia
• Decided: October 1, 1925
• Status: Published

Opinions

Crump, P.,

delivered the opinion of the court.

In this ease the proceeding was commenced upon a petition for an attachment filed by Latham-Bradshaw Cotton Company against Harris, Magill & Company/ Incorporated, as principal defendant. The principal defendant to the petition undertook to engage freight room in the steamer Prances L. Skinner on the same voyage to Bremen out of which the controversy in the ease brought in the lower court by John H. Rodgers & Company arose, and in which the opinion of this court was handed down today.

As in the case just mentioned, the plaintiff in the instant case set up as its cause of action an agreement on the part of the defendant to pay the cost of extra insurance, caused by the age of the steamer, in excess of the usual limit. The petition alleges that the defendant agreed to pay petitioner “the difference between the cost of insuring cotton cargo on said steamer, and what that cost would have been if said steamer had been less than fifteen years old.” This .was denied by the defendant in its answer and otherwise the same defenses made as in the John H. Rodgers & Company Case.

There was a direct conflict in the evidence as to the making of such an agreement, but whether or not it was to be inferred from the evidence that such a parol agreement was made presented a question for the determination of the jury. Touching the right of the plaintiff to introduce, and maintain his action upon, oral evidence to sustain its allegation that the defendant had assumed payment of the extra insurance, the freight contracts and bills of lading were to the same effect as in the John H. Rodgers & Company Case. For the reason given by the court in that case, we are of opinion that the proceeding not being on the written contract nor against the principals bound by such contract, the plaintiff can prove his alleged agreement by parol evidence.

If there had been a written contract between th ■ parties to this action, by which the defendant unde took in terms to pay the extra cost of insurance, an action of assumpsit could have been maintained upon it. That right of action would not rest upon the fact that the agreement was in writing, but generally upon the allegation that the defendant in its own right had assumed to pay the extra insurance. Such a written agreement would have been entirely distinct and separate from the written contract made for the principals, although collateral to it. The fact, therefore, whether or not such a collateral agreement is in writing- or remains in parol is immaterial to the right of either party to sue upon it.

This case is controlled by the decision in the case of Harriss, Magill & Company, Inc. v. John H. Rodgers & Company, post, p. 815 129 S. E. 513, and the judgment of the trial court will therefore be affirmed.

Affirmed.