Landes & Co. v. Fallows

• Decision Date: 02 March 1933
• Docket Number: 5059
• Parties: LANDES & CO. v. FALLOWS et al
• Court: Utah Supreme Court

19 P.2d 389

81 Utah 432

LANDES & CO. v. FALLOWS et al

No. 5059

Supreme Court of Utah

March 2, 1933

Appeal from District Court, First District, Cache County; M. C Harris, Judge.

Suit by Landes & Co., against Thomas Fallows and another. From a judgment for plaintiff, defendants appeal.

AFFIRMED.

Leon Fonnesbeck, of Logan, for appellants.

Young &amp Bullen, of Logan, for respondent.

EPHRAIM HANSON, Justice. STRAUP, C. J., and ELIAS HANSEN, FOLLAND and MOFFAT, JJ., concur.

OPINION

EPHRAIM HANSON, Justice.

The plaintiff sued to recover the unpaid balance of the purchase price evidenced by a promissory note executed and delivered by the defendants in part payment of a secondhand Gleaner harvester with a Fordson engine, which were sold and delivered by the plaintiff to the defendants under a conditional sales contract, dated June 28, 1927. The plaintiff also prayed for a sale of the property, as upon the foreclosure of a purchase price lien. The buyer, by a recital in the contract, acknowledges receipt of the property in good order and condition; and the contract contains the provisions that "no warranties of any kind have been made by seller unless endorsed herein in writing over seller's signature." The defendants had previously given a signed order for the property, which provided that "the seller reserves the right to accept or reject this order." The defendants had, before signing the order, inspected the property, and knew its condition.

The trial was to the court and a jury. At the conclusion of the evidence the court directed a verdict for the plaintiff for the amount of the note with interest and attorney's fees, and it subsequently gave its complementary decision on the equitable issues in favor of the plaintiff, and judgment was entered for a sale of the property, and for any deficiency. The defendants appeal.

At the trial the defendants sought and offered to prove, by themselves and other witnesses, that, at the time the order was given, the plaintiff's agents orally agreed that the plaintiff would overhaul both the Fordson engine and the Gleaner harvester, and would replace the parts that were worn with new parts, and replace all 1926 bearings with roller bearings of the kind used on the 1927 model, all in accordance with an enumeration of the items then made by the plaintiff's agents on a piece of paper, and which the defendants offered to prove that the plaintiff's agents stated would be pinned to, and made part of, the contract. The defendants sought and offered to prove, in the manner stated, the following matters: That the plaintiff failed and refused to make the repairs and replacements mentioned, that the Fordson engine was delivered with a defective governor, and that the main chain of the machine was lacking; that when the property was delivered and the contract and promissory note executed, the plaintiff's agent told defendants he would come back with the chain and the new parts and put the machine in condition and try it out in the field, but that he had failed so to do; that the machine was not in running condition, and that by reason thereof the defendants were unable to do the custom cutting which they had agreed to do, and thereby lost $ 375 profits, and were unable to cut their own grain, at a loss of $ 400, and, also, that by loss of time and the additional use of gasoline and oil they suffered a loss of $ 150, for all of which the defendants sought affirmative relief. The defendants also pleaded failure of consideration because of the defects above mentioned.

The court, on objection by plaintiff, excluded the proffered evidence, on the ground that it was an attempt to vary the terms of a written contract by parol; and these rulings on the admissibility of evidence are the only rulings of the trial court, covered by the assignments of error, which appellants have argued in this court. The proffered evidence was directed to affirmative defenses and counterclaims pleaded by the defendants; and in connection with the plea of defendants that, by reason of the defects in the harvester and the engine, the defendants could not use the same except at a great loss and expense in doing their own and custom harvesting, and they allege that at the time of the purchase of the property they made it known to plaintiff and its agents that they were purchasing it for the purpose of harvesting their grain and the grain of others in their neighborhood; and, further, that "the plaintiff thereby warranted that the said machine was and that it would be put in good condition, and that said machine would cut and harvest grain and do the work for which the defendants purchased the same."

The evidence shows that the plaintiff was an agent for the Holt combined harvester, and that the Gleanor harvester in question was acquired by it in a transaction with a man named Woods, who, to defendants' knowledge, turned it over in part payment of a new Holt harvester. Prior to signing the order, the defendants accompanied plaintiff's agents to the Woods ranch in Salt Lake county for the purpose of inspecting the Gleaner harvester, and they inspected it and learned its condition. The order signed by the defendants was on a printed form intended specially for use in the sale of new Holt harvesters, and the warranties contained in it specifically referred to such and not to secondhand Gleaner or other harvesters. During the inspection of the harvester and engine, the plaintiff's agents, so the proffered testimony asserts, made notes of defects and needed repairs, and they agreed that these should be a part of the order. But later in the day, when the order was presented to the plaintiff's manager by the plaintiff's agents and by the defendants, and he was informed of the replacements and repairs promised, he struck out all warranty provisions in the order, and also the provision "that when it is accepted it will cover all agreements between the parties relative to this transaction," and advised the defendants that the company would not warrant the machine in any way. The evidence also shows that some time after the delivery of the property the plaintiff supplied defendants with a new governor for the engine, and that the defendants, at the commencement of harvesting, secured a main chain for the machine from the Hyrum Elevator.

In his argument in this court appellants' counsel ignores the conditional sales contract which was executed at the time of the delivery of the property and upon which the plaintiff has founded its suit. He argues that

"it is appellants' contention that Exhibit C (the order) does not express the entire agreement or understanding of the parties, and, that being true, the parol evidence rule does not apply to prevent the introduction of extrinsic evidence with reference to matters not provided for or embodied in the contract";

and, further:

"It is also our contention that the court erred in excluding the testimony showing the defective condition of the harvester as the same was delivered, and also that the company failed to put the same in running condition; these facts went to show a failure of consideration. It is our position that the parol evidence rule does not prevent the obligors from showing that the consideration for entering into the agreement has failed."

Counsel seeks to turn to the account of the appellants the circumstance that plaintiff's manager struck from the order the provision that, "when it is accepted it will...