#### POCAHONTAS GUANO COMPANY v. W. B. BRYANT and T. B. ALLEN.

(Filed 29 September, 1920.)

Contracts, Written — Parol Evidence — Vendor and Purchaser — Damages— Counterclaim — Principal and Agent.

The defendant sold fertilizer as plaintiff’s agent under a written contract containing the statement that no conflicting verbal promise would be recognized, and that no agreement would be valid and binding unless countersigned by an officer of the plaintiff corporation. The action is to recover upon notes given _for the sale of the fertilizer: Held, there *97was no sufficient evidence to sustain defendant’s counterclaim for damages for failure of plaintiff to sliip a carload of fertilizer for, his own use-subsequently ordered, which tlie plaintiff promptly declined, and which the plaintiff’s agent had said that he would see that the defendant would, get it.

Appeal by plaintiff from Devin, J., at July Term, 1920, of Lee.

Tbe plaintiff sued to recover tbe balance due on a note dated 28 June, 1917, wbieb was given in renewal for three notes previously executed by tbe defendant for fertilizer consigned to bim for sale as agent during tbe spring of 1916. Tbe account fell due that fall when Bryant executed said tbre.e notes in settlement. He testified tbat be bad sent these three notes in a letter claiming tbat they were sent without prejudice to bis right to recover damages for an alleged breach of a verbal contract made with bim by a salesman of tbe plaintiff to ship bim another carload of fertilizer for bis own use, by reason of tbe failure to do so be bad sustained damages to bis crop.

After demand bad been made for tbe payment of tbe three notes given to tbe plaintiff tbe defendant asked for further indulgence, and gave a single note of $896.02 on 28 June, 1917, for tbe entire amount with bis brother-in-law, the defendant Allen, as surety. At tbe execution of this note Bryant made no claim of any sum due bim by tbe plaintiff. Thereafter be made other payments in 1917 and 1918, reducing tbe balance due on tbe note to $330, but made no complaint or demand on tbe plaintiff for any alleged damages for failure to-ship tbe additional carload of guano until this action was brought, when tbe defendant Bryant set up a counterclaim for $1,000 damages. Verdict for tbe defendant on tbe counterclaim, and from judgment for tbe balance in favor of tbe defendant, tbe plaintiff appealed.

Seawell & Milliken and B. H. Dixon for plaintiff.

Hoyle & Hoyle and Williams & Williams for defendants.

Olabk, C. J.

There was no evidence sufficient to go to tbe jury in support of tbe counterclaim set up by tbe defendant. Tbe contract between tbe plaintiff and tbe defendant was in writing, and a copy retained by tbe defendant, was for shipment to bim of fertilizers to be sold as agent. Tbe note sued on by plaintiff was for balance due on tbat transaction, as to which there was no controversy. Tbat contract contained tbe clause, “No verbal promises tbat conflict with tbe terms "of this contract will be recognized by this company,” with a further provision tbat any agreement would not be binding on tbe company until countersigned by an officer of tbe company.

*98Subsequently, tbe defendant ordered another carload of fertilizer, which he testified was for his own use. He testified that he wrote- the company several letters, to which they replied that they could not ship him at-that time; that then they sent one of their agents to see him, who suggested that he order the fertilizer from another company in Wilmington, who declined to ship him; that he then told the agent that he had 30 or 40 bags of fertilizer which he had received as agent still on hand, and he claimed that the agent told him to sell it and he “would see that he got another carload.” ' On the other hand, he put in evidence telegram and letter from the plaintiff, and said agent, acknowledging the receipt of his telegram and letter, but stating that owing to prior orders the company was unable to accept the defendant’s order'for another carload. It was simply a case where the defendant ordered a carload of fertilizer, which order the plaintiff company declined to accept and fill.

There was no evidence that it was in the scope of the agency of the company’s representative to bind it to ship the fourth carload. When he reported the order to the company, both the company and the agent promptly notified the defendant that the company could not accept and fill the order. This notification was prompt and was received by him in April, and he'was not misled by any reliance upon his order being filled. He had no right to rely upon the unauthorized statement of the agent,, if made, that if the defendant sold the 30 or 40 bags which he had on hand for sale as agent, he “would see that a carload was shipped to the defendant for his own use.” The defendant had in hand the contract, which showed that no agreement was binding until countersigned by an officer of the company, and both the company and the agent promptly notified the defendant by letter and by wire that owing to the scarcity of fertilizer, and prior orders, his order could not be accepted.

It was error to refuse the plaintiff’s motion to nonsuit the defendants at the conclusion of all the evidence. The judgment below will be corrected by letting the judgment stand in favor of the plaintiff for the amount due upon the note sued on by plaintiff, as to which there is no controversy, and by striking out the recovery upon the counterclaim. To that end the cause is remanded.

Error.