Thomas v. Barnes

• Decision Date: 23 June 1892
• Citation: 156 Mass. 581,31 N.E. 683
• Parties: THOMAS v. BARNES et al. BARNES et al. v. THOMAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 581

31 N.E. 683

THOMAS v. BARNES et al.

BARNES et al. v. THOMAS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1892

COUNSEL

C.P. Weston, for Thomas.

John Woodbury, for Barnes and others.

OPINION

MORTON J.

A paper writing, signed by the parties, and purporting to set forth their whole contract, cannot be contradicted, altered enlarged, or diminished by proof of previous or contemporaneous conversations between the parties. Goodrich v. Longley, 4 Gray, 379; Clark v Houghton, 12 Gray, 38; Perry v. Bigelow, 128 Mass. 129; Frost v. Brigham, 139 Mass. 39, 29 N.E 217; McGuinness v. Shanon, 155 Mass.----, 27 N.E 881. To add to it or take from it by such conversations would be to contradict or alter it. In the present case it appears that the contract relied on was a bilateral, executory one. Duplicate papers were prepared, apparently with the expectation that they were to be signed by both parties, and one retained by each. Only one was signed, and that was signed by Barnes alone. It was given to Thomas by Barnes, and remained in his possession, but he did not sign it. Barnes offered to show that it was agreed by the parties that this paper was only a partial memorandum, and that it did not contain all the provisions of the contract, and that as part of the contract Thomas orally warranted the refrigerator. The paper signed by Barnes was consistent on its face with the view that it was intended by the parties merely as specifications, and not as containing the whole contract. The conduct of Thomas in not signing it was also consistent with this view. If it was delivered by Barnes to Thomas, and assented to by the latter as containing the whole contract, their oral evidence as to previous or contemporaneous conversations would not be admissible to affect it. But whether it was so delivered to Thomas, and assented to by him, was a question of fact for the jury under suitable instructions. Sears v. Railway Co., 152 Mass. 151, 25 N.E. 98; Wilson v. Powers, 131 Mass. 539; Bartlett v. Stanchfield, 148 Mass. 394, 19 N.E. 549; Durkin v. Cobleigh, (Mass.) 30 N.E. 474. We think, therefore, that the evidence should have been admitted. During the progress of the work a controversy arose as to the packing of the refrigerator. Barnes offered to show that Thomas then warranted the refrigerator, and that Barnes accepted the warranty. There was nothing in the specifications or in the alleged contract as to the packing or relating to a warranty. The court excluded the testimony; but we think it should have been admitted. It is well settled that an executory, bilateral written contract may be varied by a subsequent oral agreement between the parties. Bartlett v. Stanchfield, supra; Stearns v. Hall, 9 Cush. 31; Courtenay v. Fuller, 65 Me. 156. The contract, when modified by the subsequent oral agreement, is substituted for the contract as originally made, and the original consideration attaches to and supports the modified contract. Munroe v. Perkins, 9 Pick. 298; Holmes v. Doane, 9 Cush. 135; Byington v. Simpson, 134 Mass. 145; Malone v. Dougherty, 79 Pa.St. 46-53; Courtenay v. Fuller, supra; Flanders v....