Fuchs & Lang Mfg. Co. v. R.J. Kittredge & Co.

• Decision Date: 26 October 1909
• Court: Illinois Supreme Court
• Parties: FUCHS & LANG MFG. CO. v. R. J. KITTREDGE & CO.

242 Ill. 88

89 N.E. 723

FUCHS & LANG MFG. CO.

v.R. J. KITTREDGE & CO.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Appellate Court, First District, on Error to Circuit Court, Cook County; Thomas G. Windes, Judge.

Action by the Fuchs & Lang Manufacturing Company against R. J. Kittredge & Co. From a judgment of the Appellate Court of the First District affirming a judgment for plaintiff, defendant appeals. Affirmed.Simmons, Mitchell & Irving, for appellant.

Musgrave, Platt & Lee, for appellee.

DUNN, J.

In an action of assumpsit tried by the court without a jury, the appellee recovered a judgment against the appellant for the price of a bronzing machine sold by the former to the latter. The Appellate Court affirmed the judgment, and the defendant has appealed to this court.

The pleadings were the common counts and the general issue. On the trial a letter written by the appellee to appellant on September 2, 1903, and changed on its face in some respects by the latter, was introduced in evidence and was claimed by appellee to constitute the contract between the parties. There had been previous correspondence and oral negotiations between the parties, and appellant claimed that the letter of September 2d and the modifications thereof were not intended to express the full intention and purpose of the parties, but that the terms of their agreement could be learned only by a consideration of all their previous correspondence and negotiations. It was contended, on the one hand, that the words ‘No. 10 latest model bronzing machine,’ used in the letter, referred to a certain machine manufactured by the appellee and described in its advertising circulars, and, on the other hand, that they referred to a different machine which appellee was about to manufacture after a new model. The appellant claims that it was induced to order the machine through the false representations of appellee's agent and that there was an oral warranty of the quality of the machine. Objections were made to the machine for various alleged defects, and appellant claimed that the contract was rescinded. All these were questions of fact which have been settled adversely to the appellant's contention by the judgment of the Appellate Court, and, although they have been argued at length in many pages of appellant's brief, we cannot consider them. The only questions here open for review on this record are those involving the action of the court in passing upon propositions of law and in the admission of evidence.

The second, third, fourth, eighth, tenth, and eleventh propositions asked by the appellant were all based upon the hypothesis that the letter of September 2d did not express the final consummation of the agreement of the parties, in which all prior negotiations were merged. The rule which excludes evidence of prior or contemporaneous negotiations leading up to the consummation of a written contract is thus stated in 1 Greenleaft on Evidence, § 275: ‘When parties have deliberately put their engagements into writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.’ Graham v. Sadlier, 165 Ill. 95, 46 N. E. 221;Telluride Power Co. v. Crane Co., 208 Ill. 218, 70 N. E. 319. The rule is a familiar one, but it is subject to the qualification that a separate parol agreement as to any matter not inconsistent with the terms or legal effect of the written agreement, and on which it is silent, may be shown, where it appears that the written instrument was not intended to be a complete and final statement of the whole transaction between the parties. Platt v. AEtna Ins. Co., 153 Ill. 113, 38 N. E. 580,26 L. R. A. 853, 46 Am. St. Rep. 877;Town of Kane v. Farrelly, 192 Ill. 521, 61 N. E. 648;Seitz v. Brewers' Refrigerating Machine Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837. Whether the letter in question was intended by the parties as a complete and final statement of the whole agreement between them was a question to be determined by the court from the circumstances of the case. The court therefore rightly refused the propositions assuming it was not so intended.

The ninth of appellant's propositions stated that if the plaintiff, through its agent, made a distinct assertion of the kind or quality of the machine which was the subject of the contract, whether it amounted to a warranty or not, which he knew or should have known to be untrue, with the view of inducing the defendant to enter into the contract, and the defendant relied upon that assertion and believed it to be true, and by reason thereof did execute the contract, then the defendant had the right to reject the machine. The false representation which can be made the basis of an action or the rescission of a contract, where there is no relation of confidence, must be of a material fact. Matters of opinion between parties dealing upon equal terms, though falsely stated, are not relieved against. Exaggeration in the commendation of articles offered for sale will not avoid a contract. However reprehensible their conduct may be in morals, the law does not hold parties responsible for the truth or falsity of expressions of opinion as to the merits of an article offered for sale, or as to its value, where no special confidence is reposed. Tuck v. Downing, 76 Ill. 71;Allen v. Hart, 72 Ill. 104;Crocker v. Manley, 164 Ill. 282, 45 N. E. 577,56 Am. St. Rep. 196. The parties here dealt at arm's length. Under this proposition, if appellee's agent had asserted that its machine was superior in quality to the one appellant had been using-essentially a matter of opinion-and it had turned out be false, the contract would have been avoided. The proposition was not a correct statement of the law.

Proposition 10a recited appellant's version of the conversations and representations of appellee's agent, including his statement that if appellant would place its order with appellee for the proposed machine appellant would be perfectly satisfied with the machine. It then stated that if appellee, relying upon these representations, gave the order for the machine, and the machine delivered was not such a machine as represented, or was not a machine with which the appellant was perfectly satisfied, the appellant was under no obligation to accept the machine. The effect of this proposition was that if appellee's agent said to appellant that appellant would be perfectly satisfied with the machine if ordered, and if appellant then made a written contract for the purchase of the machine, still it would not be bound to accept it, even though it complied in every particular with such written contract. If dissatisfied for any reason, however trivial, or for no reason having anything to do with the contract, it might reject the machine. The court rightly refused to hold this proposition.

After the machine was delivered and appellant had refused to accept it, the appellee proposed to guarantee the construction and work of the machine if appellant would accept it; otherwise appellee requested its return to the factory. In reference to this, appellant submitted the following proposition: ‘If the defendant refused to accept the guaranty of the machine offered by the plaintiff in its letter of November 27, 1903, and notified the plaintiff to that effect, then plaintiff cannot recover in this case because of defendant's failure to return the machine to plaintiff at Rutherford, N. J., unless plaintiff thereafter demanded the possession thereof and the defendant thereupon refused to deliver the same.’ This proposition was properly refused, because there was no claim on account of appellant's failure to return the machine. It was under no obligation to return it before or after the letter of November 27th. The suit was brought for the price of the machine, and the proposition was immaterial to the case.

Appellee's second proposition included a finding of fact and might therefore have been refused. Holding it, however, did the appellant no harm, for the proposition of law contained in it was correct as applied to the facts found. It held...