New England Granite Works v. Bailey

• Decision Date: 15 October 1896
• Citation: 37 A. 1043,69 Vt. 257
• Parties: THE NEW ENGLAND GRANITE WORKS v. HARRIET BAILEY
• Court: Vermont Supreme Court

37 A. 1043

69 Vt. 257

THE NEW ENGLAND GRANITE WORKS v. HARRIET BAILEY

Supreme Court of Vermont

October 15, 1896

October Term, 1896.

ASSUMPSIT in the common counts. Pleas, non assumpsit and several special defenses. Trial by court at the March Term 1896, Washington County, Ross, C. J., presiding. Upon the facts found, which are substantially stated in the opinion judgment was rendered for the defendant. The plaintiff excepted.

Judgment affirmed.

F. L. Laird for the plaintiff.

Present: TAFT, ROWELL, TYLER, MUNSON, START and THOMPSON, JJ.

OPINION

THOMPSON

The plaintiff seeks to recover for a balance alleged to be due it for a monument erected on the defendant's lot in Montpelier cemetery. By the terms of the contract which was in writing, the monument was to be of " white Westerly granite." The monument erected was of a reddish or chocolate tinge in color. The defendant refused to accept the monument on account of its color claiming that it must be of a whiter shade to fulfil the contract in respect to color.

The county court found that there are different varieties of Westerly granite known among dealers as "white Westerly granite," none of which are pure white. The coloring material intermixed in some, is of a reddish cast, which will give to the polished surface a chocolate tinge or color, and a slighter tinge or color of the same kind to the hammered surface. These tinges or colors are not all of the same intensity. In another variety of white Westerly granite, the coloring matter is of a bluish color of different intensities. This gives to the polished and hammered surface a grayish white color. A monument from this variety has more of the appearance of clear white than one constructed of the reddish variety. The plaintiff contends that there was no evidence to support the finding that there was more than one kind of Westerly granite known to the trade as white Westerly. We have carefully examined the transcript of the evidence, and find this contention cannot be sustained, there being evidence tending to prove the facts found. For instance, Henry Bertoli, a witness improved by the plaintiff to show that the monument in question was made of white Westerly granite, on cross-examination testified:

Question."Are there different kinds of white Westerly? Answer. Yes, sir.

Question. There is pinkish white and bluish? Answer.

There is pink, red, and white and blue."

Other evidence also had the same tendency.

The plaintiff also insists that it was error to permit the defendant to show by parol evidence that at the time the contract was made it was understood and agreed by the parties that the monument should be made from the whitest variety of white Westerly granite, the one which took a grayish rather than a reddish cast. It is urged that this phase of the case falls within the general rule that "parol, contemporaneous evidence is inadmissible to contradict or vary the terms of a valid, written instrument." I Green. Ev. (12th ed.) § 275.

It was incumbent upon the plaintiff to establish that the monument was made of white Westerly granite. The granite of which it was made was not white, but of reddish or chocolate color, and did not literally meet the terms of the contract. He was therefore properly permitted to show that it was of a variety known to the trade as white Westerly. It was then permissible for the defendant to show that the phrase "white Westerly granite" was also applied by the trade to the variety of...