Hooven & Allison Company, a Corp. v. Wirtz
| Decision Date | 18 May 1906 |
| Citation | 107 N.W. 1078,15 N.D. 477 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Benson county; Cowan, J.
Action by the Hooven & Allison Company against A. J. Wirtz and C. H Wirtz, partners as Wirtz Bros. Judgment for plaintiff. Defendants appeal.
Reversed.
Judgment reversed, and a new trial ordered.
Scott Rex, for appellant.
Mere written orders for goods which do not contain the terms of a complete contract will not exclude parol evidence of the contract actually made. Tufts v. Hunter, 65 N.W 922; Aultman Miller & Co. v. Clifford, 56 N.W. 593; Head et al. v. Miller, 48 N.W. 195; Boynton Furnace Co. v. Clark et al., 44 N.W. 121; Palmer et al. v. Roath et al., 49 N.W. 590; Nat. Cash Register Co. v. Pfister et al., 58 N.W. 270; Arms v Arms, 21 N.E. 147; Vaughn Co. v. Lighthouse, 71 N.Y.S. 799; Puget Sound Iron & Steel Works Co. v. Clemmons, 72 P. 465; 17 Cyc. 746, note 55.
The rule against parol evidence does not apply when the written instrument is only used collaterally for evidentiary purposes. 21 Am. & Eng. Enc. Law, 1085; 17 Cyc. 741; notes 6 and 9; Dean v. Nichols & Shepard Co., 63 N.W. 582; P. Coast Co. v. Dugger, 70 P. 523.
An implied warranty is not negatived by an express warranty on another subject, or by a provision that the writing contains the entire agreement. Blackmore v. Fairbanks, Morse & Co., 44 N.W. 548; Bucy v. Pitts Agrl. Works, 56 N.W. 541; Merriam v. Field, 24 Wis. 640; Giffert v. West, 37 Wis. 115; Alpha CheckRower Co. v. Bradley et al., 75 N.W. 369; Houston Cotton Oil Co. v. Trammel, 72 S.W. 244; Carleton v. Lombard, Ayers & Co., 43 N.E. 422; Blackwood v. Cuttin Packing Co., 18 P. 248; Ideal Heating Co. v. Kramer, 102 N.W. 840.
Both express and implied warranties may exist. Standard Rope & Twine Co. v. Olmen et al., 83 N.W. 271; Gardner v. Winter et al., 78 S.W. 143; Fay Fruit Co. v. Talerico, 69 S.W. 196.
The same matter may constitute fraud if the representation is made either without knowledge or with knowledge of its falsity, or a breach of warranty if innocently made. Ross v. Mather, 51 N.Y. 108, 110; Hitchcock et al. v. Gothenberg Water Power & Irr. Co., 95 N.W. 638.
An action must be disposed of on appeal, upon the same theory as it was tried below. Evans v. Enloe et al., 26 N.W. 170; Perry et al. v. Beaupre, 50 N.W. 400; Bailey v. Scott, 47 N.W. 286; Noyes v. Brace, 70 N.W. 846; Hollister v. Donahoe, 92 N.W. 12; Moquist et al. v. Chapel, 64 N.W. 567; Perkins v. Fish et al., 53 P. 901; Ryan v. P. Axle Co., 68 P. 498; Fifer v. Fifer, 30 N.D. 20, 99 N.W. 763, 766.
McClory & Barnett and Turner & Wright, for respondents.
The rule forbids to add by parol when the writing is silent as well as to vary where it speaks. Reeves & Co. v. Bruening, 13 N.D. 157, 100 N.W. 241.
The plaintiff brought this action to recover upon a promissory note for $ 9,850, executed by the defendants on July 20, 1904, and due 100 days thereafter. The defendants' answer admits the execution of the note and that it is not paid. The answer after alleging, "that the only consideration for the note sued on herein, was certain binding twine of plaintiff's manufacture, which was ordered and purchased of plaintiff by defendants," alleges by way of defense and counterclaim in substance (1) that the twine so ordered and purchased was manufactured by plaintiff and was sold by it as its own manufacture; that it was not accessible to the defendants for examination; that to induce the defendants to give the order and make the purchase, the plaintiff warranted the twine to be good merchantable binding twine, suitable for use in harvesters, warranting that the same was equal in quality to McCormick, Deering or Plymouth twine, and to the best in the market; that to plaintiff's knowledge, defendants relied upon said warranty, and upon the warranties implied by law; that said twine was found upon examination and use to be of inferior quality, knotty, lumpy, of uneven size, rotten, made of inferior and improper material, a large part not good merchantable twine, and not fit for use in harvesters; * * * that if it had been as represented, it would have been worth $ 9,850, the amount of the note, but as furnished, it was worth no more than $ 4,850, or $ 5,000 less than the agreed purchase price; (2) that after giving the order for the twine, defendants countermanded the order, and that thereafter in order to induce the defendants to purchase and accept the twine, plaintiff warranted the quality of the twine, the warranty being substantially that above alleged, and that defendant relied upon the warranty so made; (3) realleges the making of the foregoing warranties, and alleges "that the statements and representations aforesaid were untrue, and were known by plaintiff to be untrue when made, and that defendants have been damaged by the deceit in the sum of $ 5,000, the difference between the actual value of the twine and the contract price." At the close of the testimony, a verdict was directed for plaintiff for $ 10,388, the full amount of the note and interest, less $ 50, which apparently was allowed as damages. Defendants have appealed from the judgment, and in a statement of case, specify a large number of errors of law occurring at the trial, as ground for reversal.
The errors assigned and argued in appellant's brief relate to the exclusion of testimony offered to sustain the allegations of their answer and to the direction of the verdict. Before considering these questions, it is necessary to state some preliminary facts.
The record shows that on July 8, 1904, the defendants, at the solicitation of one W. A. Mace, a traveling salesman for plaintiff, gave a written order for the twine in question, which, with the alleged approval of plaintiff endorsed thereon, is in words and figures as follows:
The note in suit was executed and delivered to W. A. Mace for plaintiff, at Leeds, on July 20, 1904. One carload of the twine was then standing on the track at Leeds, but no part of it had been unloaded or delivered; neither had it been examined by the defendants. At the trial, upon objection of plaintiff's counsel, all testimony offered by the defendant to prove that plaintiff's salesman, Mace, at the time he procured the order on July 8, 1904, orally warranted the quality of the twine as alleged in the answer was excluded and the numerous rulings rejecting this testimony are assigned as error. In our opinion the court did not err in excluding this testimony. Its purpose was to show that the sale effected by the written order above set out, if it was in fact made under that order, and this defendants deny, was accompanied by an oral warranty as to the quality of the twine, by Mace. To permit the defendants to prove and rely upon the alleged oral agreement, thus made, would violate the express condition in the written contract, that "no agreement, condition or stipulation, verbal or otherwise, * * * will be recognized unless approved or accepted in writing by the Hooven & Allison Company" and would impose upon the plaintiff an agreement, an express warranty made without authority and as to which the parties had stipulated the plaintiff should not be bound unless approved or accepted by it in writing. The language of the order is that "no agreement, condition or stipulation, verbal or otherwise, * * * will be recognized. * * *" That language is not ambiguous. It is an explicit affirmation that the plaintiff will not be bound either by verbal or written agreements and these...
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