Aetna Chemical Company v. Spaulding & Kimball Co.

• Citation: 126 A. 582,98 Vt. 51
• Parties: AETNA CHEMICAL COMPANY v. SPAULDING & KIMBALL COMPANY
• Decision Date: 07 October 1924
• Court: United States State Supreme Court of Vermont

126 A. 582

98 Vt. 51

AETNA CHEMICAL COMPANY v. SPAULDING & KIMBALL COMPANY

Supreme Court of Vermont

October 7, 1924

May Term, 1924.

ACTION OF CONTRACT to recover for goods sold and delivered after Uniform Sales Act became effective. Plea, general denial, and special pleas, and declaration in set-off. Trial by jury at the September Term, 1923, Chittenden County, Fish, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Martin S. Vilas and Guy M. Page for the defendant.

Max L. Powell for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

WATSON

This is an action of contract to recover for goods both sold and delivered after the Uniform Sales Act took effect. Defendant pleaded general denial, payment, set-off with declaration and specification, and special plea alleging failure of consideration and non-performance of the contract by plaintiff. At the close of the evidence a verdict was directed for plaintiff to recover its claim amounting to $ 542.18, with costs. The case is here on defendant's exceptions.

Defendant a corporation, is engaged in the wholesale mercantile business at Burlington, selling goods to the trade, its customers being local retail dealers of the same kinds of goods.

The goods were ordered on one of plaintiff's printed order blanks, filled out in writing, and signed by the defendant as buyer and by J. W. Nicholson as plaintiff's salesman. Defendant's name was signed thereto by Fred E. Kimball, its treasurer. When the latter so signed the order, he understood he was thereby giving an order to the plaintiff company, and read its name printed thereon at the top. The goods so ordered were all shipped by that company and received by defendant. Reading down from the top, the order gives the plaintiff's name and place of business, the number of the order, its date (February 8, 1922), the defendant's name and address, the goods ordered as 60 cartons, each of 4 dozen "Wonder Window Washer (Small)," price $ 1.90 per dozen, and 15 cartons, each of 2 1/2 dozen same kind of goods "(Large)," price $ 3.04 per dozen. "12 1/2% trade, 3% 10 days, delivered." Then follows directly underneath, and just above the defendant's name signed to the order, the plainly printed provision, "No promises valid unless written on this order." Such elements of agency are not provided for in the Uniform Sales Act, and therefore the rules of law relating to principal and agent apply to the contract in question. Uniform Sales Act, § 73.

The original order on such printed blank, so filled out and signed, was received in evidence as Plaintiff's Exhibit No. 1, to show the contract existing between the plaintiff and the defendant, subject to the latter's objections: that it does not purport to be a contract, nor indicate the nature of the undertaking; nor whether a contract of sale, or who the seller or buyer is; nor anything as to a promise to pay, or the subject-matter of the contract, and is not a complete contract, but simply a memorandum of certain entries of quantity and price of some substance, apparently having no connection with the plaintiff as a party.

The exception to this ruling presents two all-important questions, namely, the character and the legal effect of the document received in evidence. The clause therein, "No promises valid unless written on this order," was a limitation by the plaintiff upon the authority of its salesman, and, being printed on the face of the order, it was a part of the contract of which defendant had knowledge, or will be taken to have had knowledge, at the time the order was given, and defendant as well as the salesman was bound thereby. The limiting provision did not purport to circumscribe the agent's authority as to the terms of the contract of sale, but it did prescribe that no promises entered into by him should be valid unless they be made to appear in writing on the order signed. In no other manner was the agent to make any agreement or representation in connection with such sales. It was condition going to the essence of his authority, and any agreement or representation by him, not so made to appear, is void as to the plaintiff. Smith v. Niagara Fire Ins. Co., 60 Vt. 682, 15 A. 353, 1 L. R. A. 216, 6 A. S. R. 144; Pictorial League v. Nelson, 69 Vt. 162, 37 A. 247.

The case last cited is much in point. There the contract of sale in the form of an order, procured by an agent of the seller and signed by the buyer, had on its margin, signed by the seller and agent, the following: "The holder of this blank is authorized to receive orders for the Pictorial League. The proprietors are not responsible for any agreement not appearing on the face of this contract." The contract was for the furnishing of one cut and reading matter to illustrate the furniture and drapery business in the city of Burlington, only, for the term of one year from commencement. Subject to exception, defendant was permitted to give evidence tending to show that upon the occasion of the giving of the order, and before it was given, the agent represented that there would be sent by the plaintiff to the defendant each time, before the cut was sent him, a sample sheet containing not less than ten samples, from which he could select one, and the cut for that sample would then be sent to him; that the plaintiff did not perform this representation of the agent but sent cuts which the defendant did not want, and which were inferior to the sample exhibited by the agent. The admission of this evidence was held to be error, as allowing a further stipulation, resting in parol, to be added to the written contract, the order not specifying the quality of the cuts to be furnished; and that since the plaintiff had given notice by what was upon the margin of the order, that the agent was not authorized to bind it by any representation not embodied in the terms of the order, the defendant could not treat the agent as authorized to make any representations, or stipulations, which would bind the plaintiff, unless the same were so embodied in the written order.

The foregoing cases to which reference is made are full authority for our holding in the instant case that, since the defendant gave the order in question with knowledge of the limited power imposed upon the salesman, no act or undertaking of the latter in connection therewith, in excess of such power, can give defendant any rights against the plaintiff. From this it follows that no part of the contract of sale can be oral--all undertakings connected therewith, to be valid, must be contained within the terms of the written contract. Nor do the principles apply under which parol evidence is admissible where the contract is only partially reduced to writing; for the writing here in question is not of that partial character, it purports on its face to state the whole contract. Dixon v. Blondin, 58 Vt. 689, 5 A. 514. It may be that this agreement in writing is expressed in such short and incomplete terms as renders parol evidence admissible to explain that which is in itself unintelligible, such explanation not being inconsistent with the written terms, but be it so, the character of the writing as to covering the entire contract is not thereby changed. We think the writing in itself, either in express terms or by legal intent, contains all the essential elements of a valid contract of sale. As to necessary implications of a written contract being a part of it, see Caverly-Gould Co. v. Springfield, 83 Vt. 396, 76 A. 39.

Defendant contended below and does now that the sale in question was by sample, and so by section 16 of the Uniform Sales Act there was an implied warranty that the bulk should correspond with the sample in quality; also that by the evidence defendant expressly made known to the salesman the particular purpose for which the goods were required, relying on the latter's judgment in this behalf, and hence, that under section 15, subdivision (1), there was an implied warranty that the goods would be reasonably fit for such purpose. The contention of the plaintiff was and is that the sale was not by sample and so the provisions of section 16 do not apply; but that it was a sale of a specified article under its trade name, and by subdivision (4) of section 15, there was no implied warranty as to its fitness for any particular purpose. The trial court sustained plaintiff's position in both respects, saving exceptions to defendant. The questions thus reserved go to the legal effect of the contract of sale, and require careful consideration.

Section 15 states: "Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the sellers's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

"(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. * * * * *"

The written contract makes no mention of a sample, nor does it contain anything indicating that in its making a sample was used or referred to. Since, as we have already held, the writing states the whole contract between the parties, parol evidence is not admissible to show that the goods were sold by sample; for ...