Hazelton Boiler Co. v. Fargo Gas And Electric Co.
| Decision Date | 22 November 1894 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; McConnell, J.
Action by the Hazelton Boiler Company against the Fargo Gas & Electric Company on a contract for the sale of a boiler. Judgment for plaintiff, and defendant appeals.
Reversed.
Judgment reversed, and a new trial granted.
W. C Resser, (Seth Newman of counsel) for appellant.
The defendant offered upon the trial testimony tending to establish all the facts necessary to substantiate the defense of fraudulent representations. The evidence given and offered was sufficient on the question of fraud to warrant the submission of the case to the jury. Meyer v Salazee, 24 P. 507; Derby v. Peck. L. R., 14 App. Cases, 337; Litchfield v. Hutchinson, 117 Mass 195; Smith v. Countryman, 30 N.Y. 655. If the defense of fraud was imperfectly stated, the defect should have been met by a motion to make more definite and certain and not by a motion to strike out. Yerkes v. Crum, 2 N.D. 72, 49 N.W. 422. Parole evidence of fraudulent oral representations as an inducement to the making of a written contract is admissible. Bigelow on Fraud, 175; Addison on Torts, § 1216; Hillard on Torts, 4, 5 and 12; Antle v. Sexton, 26 N.E. 691. The contract contains two warranties. The second warranty was "which we guarantee to be a saving of at least 20 per cent. in fuel over any horizontal tubular boiler." Upon its face this clause purports to be an express and positive warranty, and not an expression of opinion, and it must be construed as such. Chapman v. Murch, 19 Johns. 290; Towell v. Gatewood, 33 Am. Dec. 437; Osgood v. Lewis, 18 Am. Dec. 317; Oneida Mfg. Society v. Lawrence, 4 Cow. 440; Thrall v. Newell, 19 Vt. 202; Pinney v. Andrews, 41 Vt. 631. By their acts under the contract, the parties treated the guaranty as a whole, and their conduct and acts are admissable as evidence of the construction which they put upon the warranty. When the terms of a contract are uncertain and its true intent and meaning doubtful, then the practical construction which the parties put upon the contract by their conduct thereunder is of vast importance in ascertaining its true meaning. Heidenheimer v. Cleveland, 17 S.W. 524; Chicago v. Sheldon, 9 Wall. 50; Topliff v. Topliff, 122 U.S. 121; District of Columbia v. Gallagher, 124 U.S. 505; Central Trust Co. v. Wabash R. R. Co., 34 F. 254; O'Dea v. Winona, 43 N.W. 97; Knox County v. Ninth National Bank, 147 U.S. 91; Stone v. Clark, 35 Am. Dec. 370; Emery v. Webster, 66 Am. Dec. 274.
W. E. Dodge, for respondent.
The oral negotiations set out in the answer, merged in the written contract, which superceded them, and it was not error to strike these paragraphs from the answer. Section 921, Civil Code. The answer does not set out a defense in the nature of a breach of warranty. The purchaser of personal property must have relied upon the statements of the seller as to the quality of the article sold, in order to maintain an action for breach of warranty. Watson v. Roode, 46 N.W. 491; Holliday v. Briggs, 15 Neb. 219. Defendant does not declare, nor does it seek to recover upon a breach of warranty in the contract, but upon a subsequent agreement, which it declares was entered into between the parties. It follows "that a warranty given after a sale has been made is void, unless some new consideration be given, for the warranty." Benjamin on Sales, § 611; Reed v. Wood, 9 Vt. 285; Vincent v. Leland, 100 Mass. 432; Conger v. Chamberlain, 14 Wis. 258; Summers v. Vaughn, 35 Ind. 323.
The controlling facts involved in this action are as follows: At and prior to April 17, 1889, defendant was operating a gas and electric plant at the City of Fargo, and had in use in its plant a certain horizontal tubular steam boiler, and, being desirous of adding to the power of its plant, defendant entered into negotiations with the plaintiff for the purchase of a boiler. Considerable correspondence was had between the parties, resulting in a contract of sale. The correspondence was between the secretary of defendant, one Seth Newman, and one C. D. Dennis, who was plaintiff's representative, and the sale contract was signed by them in behalf of the parties. All of the contract of sale which we deem important in our discussion of the case is as follows: The boiler was delivered under said contract, and one-half of the purchase money was paid. This action is for the balance of the purchase price. The complaint sets out in effect the sale and delivery of the boiler as above stated, and that after the delivery the boiler was fully tried and tested, and was found to perform the work as guarantied, and was then approved and accepted by the defendant, and that defendant has ever since retained and used the boiler, but has neglected and refused to pay the balance of the purchase price as before stated. A copy of the contract is made a part of the complaint. Defendant answered the complaint, admitting the sale and delivery under the contract, and as a defense, by way of recoupment, set out fraud in the sale, and a false warranty, and damages resulting therefrom to the amount of the unpaid purchase money. When the case was called for trial, and before any evidence was offered, the plaintiff moved to strike from the answer "paragraphs five, six, seven, eight, and nine, for the reason that the allegations of fact contained in the paragraphs named set forth an alleged oral agreement and oral representations made prior to the written contract set up in the complaint and admitted in the answer, which written contract, it was claimed, superceded such oral negotiations, and in which the same was merged." The court reserved its ruling, but later in the trial the motion was granted, and said paragraphs of the answer were stricken out. This ruling is assigned as error in this court.
The record shows that the principal contention at the trial turned upon the proper construction to be put upon the warranty feature of the sale contract. Plaintiff's contention at the trial and in this court is in effect, that the following words, viz: "Which we guaranty to be a saving of at least twenty per cent. in fuel over any horizontal tubular boiler,"--are not to be regarded as a substantial or binding feature of the warranty, but, on the contrary, should be treated as an expression of opinion, or as mere "puffing," upon the part of the vendor. The defendant's counsel takes the opposite view, and insists that the words quoted should be construed as constituting a vital feature of the contract. The nature of this contention may be well illustrated by extracts from the briefs of counsel. Plaintiff's counsel says, referring to the words above quoted, that they are "not a representation relating to the quality of the boiler itself, but to the quality of all horizontal tubular boilers, concerning which the plaintiff is shown to have no peculiar knowledge or different knowledge from that which the defendant possessed." Defendant's position is briefly stated in the following language, taken from the brief of counsel: Expressed in other language in defendant's brief, defendant argues that It appears by the evidence that the first installment of the purchase money was made after the Hazelton boiler had been in operation some two months, and without complaint as to its merits as a boiler. It appears that some time in the fall of 1889 defendant made complaints to plaintiff that the boiler was not working as it was warranted to work. Several letters passed...
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