Backer v. Parker-Morelli-Barclay M. Co‪.‬

Contracts ? Sales ? Automobiles ? Construction of Contract ? Pleadings ? Amendment During Trial ? Discretion ? Appeal and Error ? Harmless Error ? New Trial. Contracts ? Sales ? Automobiles ? Written Portion of Contract Supplants Printed Part. 1. Under section 10523, Revised Codes 1921, providing that where the terms of a contract are partly in printing and partly in writing, and the two are inconsistent, the written portion controls, where a contract of sale of an automobile provided in writing "Terms on balance ? 140.00 due on delivery" and in printing "Balance due upon delivery," the former supplanted the latter. Same ? Courts must Reconcile Provisions of Contract, if Possible ? Apparently Conflicting Provisions of Contract of Sale Held Reconcilable. 2. In the construction of a contract courts must reconcile all its provisions, if it is possible to do so. Under this rule held in an action for breach of contract for the sale of an automobile for $800 based on failure of defendant dealer to make delivery according to its terms, that the printed portion thereof by which the buyer agreed "to pay balance of the purchase price on delivery of car or to give such security for payment" as the dealer might require, and the written one, "Terms on balance ? 140.00 due on delivery of car," were reconcilable to mean that the buyer agreed to pay $140 on delivery and at the sellers option to give such security for payment of the balance as the seller might require. Pleadings ? Amendment at Any Stage of Trial Permissible in Discretion of Court. 3. The power of the district court to allow amendments of pleadings at any stage of the trial lies within its discretion and it may order amendment on its own motion if in its opinion a non-suit or mistrial may thereby be avoided; and where at the close of plaintiffs case it ordered the complaint to be amended to avoid what it deemed a technical variance, the defendant in the absence of a showing of prejudice may not complain of its action. - Page 596 Same ? Admission of Testimony Under Insufficient Complaint Rendered Harmless by Subsequent Proper Amendment of Pleading. 4. Alleged error in the admission of testimony of plaintiff objected to as not warranted under the complaint held to have been rendered harmless by subsequent proper amendment of the pleading. Appeal and Error ? Error Without Prejudice Insufficient to Reverse Judgment. 5. The supreme court on appeal will not reverse a judgment merely because error is shown; to warrant reversal the error must have prejudiced the rights of the party who urges it. Sales ? Automobiles ? Title Remaining in Seller Until Full Payment Made ? Provision in Contract ? Exclusion of Testimony of Salesman as to Advising Buyer of Provision Harmless. 6. Where the contract of sale of an automobile, damages for the breach of which for failure to make delivery as stipulated therein were sought by plaintiff, provided that title should remain in the seller until the car was fully paid for, refusal to permit defendants salesman to answer the question whether he had advised plaintiff that title would be retained until the car had been fully paid for, was non-prejudicial. Appeal and Error ? Conflict in Evidence ? New Trial ? Discretion. 7. Where the evidence in a breach of contract action was conflicting but the testimony of plaintiff who had judgment supported the material allegations of his complaint, the jury evidently having believed him, as was its right, the supreme court may not hold that the trial court abused its discretion in refusing to grant a new trial on the ground of insufficiency of the evidence.