Conant v. The National State Bank of Terre Haute

• Citation: 22 N.E. 250,121 Ind. 323
• Decision Date: 17 October 1889
• Docket Number: 13,880
• Parties: Conant et al. v. The National State Bank of Terre Haute et al
• Court: Indiana Supreme Court

22 N.E. 250

121 Ind. 323

Conant et al. v. The National State Bank of Terre Haute et al

No. 13,880

Supreme Court of Indiana

October 17, 1889

Ptition for a Rehearing Overruled December 19, 1889.

From the Parke Circuit Court.

Judgment affirmed.

C. F McNutt, S. R. Hamill, D. H. Maxwell, S. C. Davis, S. B Davis, T. B. Long, G. W. Faris, J. G. McNutt and F. A. McNutt, for appellants.

B. E. Rhoads, I. N. Pierce and E. F. Williams, for appellees.

OPINION

Elliott, C. J.

The appellees declared upon five promissory notes and a mortgage executed by the appellants for mill machinery, and the latter answered the complaint in several paragraphs of great length, to all of which demurrers were sustained.

The answers are very voluminous, and it would uselessly encumber the record to set them out, and we shall not attempt to do so, but will refer to such parts of them as are important when we come to consider the rules of law applicable to them.

Several of the paragraphs of the answer may be disposed of by the application of the familiar rule that where a written instrument is executed it becomes the repository of the entire contract, and the undertaking and agreement of the parties must be ascertained from the instrument and measured by its provisions. The decision in Welz v. Rhodius, 87 Ind. 1, has been much limited, if, indeed, not entirely overthrown, by the later decisions, and the broad doctrine there laid down can not be regarded as correct. Diven v. Johnson, 117 Ind. 512, 20 N.E. 428; Singer Mfg. Co. v. Forsythe, 108 Ind. 334, 9 N.E. 372. It is true that the actual consideration of a contract may be shown by parol evidence, but it is not true that where the acts that a party agrees to perform are expressly and specifically set forth, it may be shown by parol evidence that he agreed to do other things. Where the writing states specifically the acts which the parties are to perform, no other acts can be proved by parol except in cases of fraud or mistake. The writing takes up and retains the whole and every part of the contract, leaving nothing to be supplied by extrinsic evidence. Clanin v. Esterly, etc., Co., 118 Ind. 372, 21 N.E. 35; Seavey v. Shurick, 110 Ind. 494, 11 N.E. 597; Carr v. Hays, 110 Ind. 408, 11 N.E. 25; Low v. Studebaker, 110 Ind. 57, 10 N.E. 301; Long v. Straus, 107 Ind. 94, 6 N.E. 123 (100); Brown v. Russell & Co., 105 Ind. 46, 4 N.E. 428; Ice v. Ball, 102 Ind. 42, 1 N.E. 66; Phillbrook v. Emswiler, 92 Ind. 590.

The provisions of a written contract can not preclude a party from showing that it was obtained by fraud. Burns v. Thompson, 91 Ind. 146; Hines v. Driver, 72 Ind. 125; Gatling v. Newell, 9 Ind. 572. But, where there is neither fraud nor mistake, the parties can not add a stipulation to a written contract complete in all its parts. This rule even extends to cases where there are preliminary written agreements which are merged in a complete final contract. Phillbrook v. Emswiler, supra; Turner v. Cool, 23 Ind. 56; Bailey v. Snyder, 13 Sergt. & R. 160; Williams v. Morgan, 15 Q. B. 782. The reason for the rule is, that if the complete and final written contract is not regarded as the best evidence of the entire agreement of the parties the courts can not determine where the preliminary negotiations ended and the final contract became complete. Wharton Cont. section 684.

In this instance the appellants can not add to the written contract a stipulation that the sellers of the mill machinery agreed to furnish and place in operation machinery that would manufacture three designated grades of flour, and with a capacity of one hundred barrels daily, for the specific and unambiguous provision of the contract is that the sellers agree to furnish and put in operation "machinery for a one-hundred-barrel mill," and the machinery which they agreed to furnish is particularly described and designated The provisions of the contract are specific, and these specific provisions can not be supplanted by oral statements. To permit parties to substitute oral statements for written stipulations would render written instruments valueless, and leave to the uncertainty of human memory the terms of contracts. This would defeat the chief purpose of a written instrument, which is to furnish certain, reliable and permanent evidence of the contract. Where parties commit their contract to writing, by that writing they must stand, where there is neither fraud nor mistake. This must be true, or else the distinction between oral and written contracts will be utterly broken down.

Where there is a written instrument, embodying the terms of the contract between buyer and seller, an express warranty can not be imported into the contract by parol evidence. Where the writing contains an express warranty implied ones are excluded. This doctrine rests upon the general rule already stated, and is one among the best settled in the law. Johnston Harvester Co. v. Bartley, 81 Ind. 406; Brown v. Russell & Co., supra; Randall v. Rhodes, 1 Curt. 90, 20 F. Cas. 240; Deming v. Foster, 42 N.H. 165; Dickson v. Zizinia, 70 E. C. L. R. 602; Parkinson v. Lee, 2 East, 34; Warbasse v. Card, 74 Iowa 306, 37 N.W. 383; Nichols, etc., Co. v. Wayman, 71 Iowa 160, 32 N.W. 258.

The written proposal of the sellers of the machinery which became, by acceptance, the contract between the parties, contains no warranty of what the machinery will do. The introductory sentence of the sellers' proposal is this: "We will furnish the following machinery for a one-hundred-barrel mill (of twenty-four hours), set up in your mill building." This sentence is followed by a specific description of the various articles which the vendors propose to sell. It is doubtful whether there is any express warranty at all; but, however this may be, it is quite clear that there is no warranty that the machinery will manufacture any particular grades of flour. It is true that no special form of words is required to constitute a warranty, but there must be enough to fairly express an intention to warrant the thing sold to be what it is represented. Mason v. Chappell, 56 Va. 572, 15 Gratt. 572. A description of a thing is not of itself a warranty of what it will accomplish. A warranty is not necessarily a part of a contract; it is, indeed, a collateral and independent element, and must be expressed in the writing, except in cases where the law implies a warranty. There may be an implied warranty without positive stipulations, but there can be no express warranty without appropriate words expressing an intention to warrant, and fairly conveying that meaning.

A manufacturer of machinery who sells it to a person whom he knows buys it for a special purpose, and with the intention of putting it to a particular use, does, as a general rule, and in the absence of an express warranty, impliedly warrant that the machinery is reasonably fit for that purpose, and reasonably suited to that use. McClamrock v. Flint, 101 Ind. 278; Poland v. Miller, 95 Ind. 387. But the implied warranty does not extend beyond this limit. It does not affirm that the machinery will manufacture articles of a peculiar grade and quality. If the article is reasonably fit for the purpose for which the purchaser bought it, and to which the seller knew it was intended to be applied there is no breach of the implied warranty. Robinson Mach. Works v. Chandler, 56 Ind. 575; Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288; Port Carbon Co. v. Groves, 68 Pa. 149.

What we have said disposes of all the questions respecting the warranty which appellants have argued, or the record presents.

The allegations of the answers which assume to plead fraud, do not charge that the sellers of the machinery, for which the notes in suit were given, misrepresented any material fact. They do, however, charge that the sellers represented that they were experts in "flour-mill machinery; that they had a peculiar knowledge in relation to flour-mill machinery," and that the defendants were ignorant of such matters. These answers also charge that the sellers, being experts, "with intent to deceive the defendants and take advantage of their want of knowledge, falsely represented that the machinery specified, with proper adjustments, was adapted to and in all respects sufficient, and had a capacity of one hundred barrels per day of the three grades of flour, patent, clear and low grade, and that said machinery, when adjusted and set up, had the capacity to make flour in said quantity and quality, properly, economically and profitably."

The representations which the answer charges that the sellers made to them, when taken together, can not very well be held to be more than the expressions of opinions and...