Ernst Iron Works, Inc. v. Duralith Corp.

CourtNew York Court of Appeals
Writing for the CourtFINCH
Citation270 N.Y. 165,200 N.E. 683
Decision Date03 March 1936
PartiesERNST IRON WORKS, Inc., v. DURALITH CORPORATION et al.

270 N.Y. 165
200 N.E. 683

ERNST IRON WORKS, Inc.,
v.
DURALITH CORPORATION et al.

Court of Appeals of New York.

March 3, 1936.


Action by the Ernst Iron Works, Inc., against the Duralith Corporation and another. From a judgment of the Appellate Division of the Supreme Court, Fourth Department (243 App.Div. 852, 278 N.Y.S. 1014), which affirmed a judgment of the Trial Term in favor of the plaintiff, the named defendant appeals, by permission.

Judgment of Appellate Division and that of Trial Term reversed, and complaint dismissed.


[270 N.Y. 166]Appeal from Supreme Court, Appellate Division, Fourth department.

Jesse Freidin, Charles L. Apfel, and Leonard L. Berliner, all of New York City, for appellant.

270 N.Y. 167]Irving I. Beckler, of Buffalo, for respondent.
FINCH, Judge.

The defendant is engaged in the manufacture and sale of a wall texture called ‘Duralith.’ Since 1933 it has been manufacturing and selling in addition a coloring material called ‘Duratint.’ On May [270 N.Y. 168]5, 1933, the plaintiff, a corporation having its place of business in Buffalo, N. Y., signed a printed contract for the purchase of 20 tons of Duralith, and at the same time signed an order for Duratint. The contract was submitted to the officers of the defendant corporation and accepted by them. The products ordered were delivered to the plaintiff and payment was made for them. Shortly afterwards, in July of 1933, this action was instituted to rescind the contract on the ground that the plaintiff had been induced to enter into it by fraudulent representations of a sales agent of the defendant.

The contract signed by the plaintiff is a uniform contract used by the defendant. It contains the following clauses:

‘The company makes no representation regarding previous sales in distributor's territory.’

‘No representation or warranty of any kind shall be binding upon either the Duralith Corporation or the dealer unless it has been incorporated in this agreement.’

Despite these provisions of the contract, the plaintiff maintains that the defendant's sales agent, Liberman, told the officers of the plaintiff before they entered into the contract ‘that ‘Duralith’ with colors had not been sold or distributed in the City of Buffalo or County of Erie previously thereto and that if plaintiff entered into said contract that plaintiff would then become the sole distributor for said product in the City of Buffalo and County of Erie in the State of

[200 N.E. 684

New York and would be the first and only distributor to sell and distribute said product in the said territory. * * *' The evidence offered at the trial shows that the defendant had made two or three small sales of Duralith in the city of Buffalo prior to entering into the contract with the plaintiff. There is no evidence that a distributor for the Buffalo area had previously been appointed by the defendant. The jury returned a verdict in favor of the [270 N.Y. 169]plaintiff, and the judgment entered thereon has been affirmed.

The defendant maintains that the admission in evidence of testimony of statements made by the sales agent, Liberman, violated the parol evidence rule, since these statements conflict with the provisions of the contract contained in the above-quoted clauses. The plaintiff, however, points to the cases which hold that a person cannot exempt himself from liability for fraud by inserting in his contract a blanket or merger clause. Bridger v. Goldsmith, 143 N.Y. 424, 38 N.E. 458;Jackson v. State, 210 App.Div. 115, 205 N.Y.S. 658; S. Pearson & Son v. Lord Mayor, etc., of Dublin [1907] A.C. 351. See 5 Wigmore on Evidence (2d Ed.) § 2439. No...

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29 practice notes
  • Greenfield v. Heckenbach, No. 1779 September Term, 2000.
    • United States
    • Court of Special Appeals of Maryland
    • May 1, 2002
    ...Such, of course, is not the law. (See Bridger v. Goldsmith, 143 N.Y. 424, 427-429, 38 N.E. 458; Ernst Iron Works v. Duralith Corp., 270 N.Y. 165, 169, 200 N.E. 683; Angerosa v. White Co., 248 A.D. 425, 431, 290 N.Y.S. 204, affd. 275 N.Y. 524, 11 N.E.2d 325; see also, 3 Williston on Contract......
  • Danann Realty Corp. v. Harris
    • United States
    • New York Court of Appeals
    • March 5, 1959
    ...to plaintiff's officers such incompetence that they did not understand what they read and signed. Cf. Ernst Iron Works v. Duralith Corp., 270 N.Y. 165, 171, 200 N.E. 683, 685. Page 603 Although this court in the Ernst case discounted the merger clause as ineffective to preclude proof of fra......
  • Cohen v. Cohen, No. 09 CIV. 10230 WHP.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 27, 2014
    ...in his contract a blanket or merger clause[,]” Cohen '56, 1 A.D.2d at 587, 151 N.Y.S.2d 949 (quoting Ernst Iron Works v. Duralith Corp., 270 N.Y. 165, 169, 200 N.E. 683 (1936)), a specific disclaimer “destroys [her] allegation that she executed the agreement in reliance upon defendant's rep......
  • Scientific Holding Co., Ltd. v. Plessey Inc., Nos. 180
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 20, 1974
    ...the scope of the agent's authority. See Walsh v. Hartford Fire Ins. Co., 73 N.Y. 5, 10 (1878); Ernst Iron Works, Inc. v. Duralith Corp., 270 N.Y. 165, 200 N.E. 683 (1936); Harvey v. J. P. Morgan & Co., 166 Misc. 455, 463, 2 N.Y.S.2d Page 25 520, 530 (Mun.Ct. N.Y.C. 1937) (dictum), rev'd on ......
  • Request a trial to view additional results
29 cases
  • Greenfield v. Heckenbach, No. 1779 September Term, 2000.
    • United States
    • Court of Special Appeals of Maryland
    • May 1, 2002
    ...Such, of course, is not the law. (See Bridger v. Goldsmith, 143 N.Y. 424, 427-429, 38 N.E. 458; Ernst Iron Works v. Duralith Corp., 270 N.Y. 165, 169, 200 N.E. 683; Angerosa v. White Co., 248 A.D. 425, 431, 290 N.Y.S. 204, affd. 275 N.Y. 524, 11 N.E.2d 325; see also, 3 Williston on Contract......
  • Danann Realty Corp. v. Harris
    • United States
    • New York Court of Appeals
    • March 5, 1959
    ...to plaintiff's officers such incompetence that they did not understand what they read and signed. Cf. Ernst Iron Works v. Duralith Corp., 270 N.Y. 165, 171, 200 N.E. 683, 685. Page 603 Although this court in the Ernst case discounted the merger clause as ineffective to preclude proof of fra......
  • Cohen v. Cohen, No. 09 CIV. 10230 WHP.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 27, 2014
    ...in his contract a blanket or merger clause[,]” Cohen '56, 1 A.D.2d at 587, 151 N.Y.S.2d 949 (quoting Ernst Iron Works v. Duralith Corp., 270 N.Y. 165, 169, 200 N.E. 683 (1936)), a specific disclaimer “destroys [her] allegation that she executed the agreement in reliance upon defendant's rep......
  • Scientific Holding Co., Ltd. v. Plessey Inc., Nos. 180
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 20, 1974
    ...the scope of the agent's authority. See Walsh v. Hartford Fire Ins. Co., 73 N.Y. 5, 10 (1878); Ernst Iron Works, Inc. v. Duralith Corp., 270 N.Y. 165, 200 N.E. 683 (1936); Harvey v. J. P. Morgan & Co., 166 Misc. 455, 463, 2 N.Y.S.2d Page 25 520, 530 (Mun.Ct. N.Y.C. 1937) (dictum), rev'd on ......
  • Request a trial to view additional results

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