McLoone v. Brusch

• Decision Date: 01 November 1912
• Citation: 119 Minn. 286,138 N.W. 35
• Court: Minnesota Supreme Court
• Parties: McLOONE et al. v. BRUSCH.

119 Minn. 286

138 N.W. 35

McLOONE et al.

v.BRUSCH.

Supreme Court of Minnesota.

Nov. 1, 1912.

Appeal from District Court, Waseca County; Arthur B. Childress, Judge.

Action by John McLoone and others against Charles J. H. Brusch. From an order denying a new trial, plaintiffs appeal. Affirmed.

Syllabus by the Court

The written executory order for the shipment of goods to defendant, set out in the opinion, held not on its face a complete expression of the contract between the parties, and that evidence of a contemporaneous parol warranty of the goods was admissible. Aultman Miller Co. v. Clifford, 55 Minn. 159, 56 N. W. 593,43 Am. St. Rep. 478,Phoenix Pub. Co. v. Riverside Clothing Co., 54 Minn. 206,55 N. W. 912, and Boynton Furnace Co. v. Clark, 42 Minn. 335, 44 N. W. 121, followed and applied. Moonan & Moonan, of Waseca, for appellants.

Fred W. Senn, of Waseca, for respondent.

BROWN, J.

Action to recover the purchase price of a corn shredder, in which defendant had a verdict, and plaintiffs appealed from an order denying a new trial.

The action was founded upon an instrument in the following language, namely: ‘Waseca, Minn. Oct. 14th, 1910. The undersigned orders of McLoone, Priebe & Co. one two-roll Adams corn shredder complete, with cutter head, for the sum of one hundred sixty dollars ($160.00), terms thirty (30) days, this shredder to be f. o. b. factory. [Signed] Charles J. H. Brusch.’ Defendant interposed in defense an oral warranty of the soundness of the shredder, made at the time the order therefor was given, a breach thereof, and resulting damages. When the cause came on for trial in the court below, the parties entered into a stipulation to the effect that if evidence of the alleged parol warranty was admissible, over plaintiffs' objection that it would vary and add to the written contract, a verdict should be by the court directed in defendant's favor and that if such evidence was held inadmissible a verdict should be directed for plaintiffs for the purchase price of the machine. The trial court held the evidence admissible, and, in harmony with the stipulation, directed a verdict for defendant. Plaintiffs appealed from an order denying a new trial.

The only question presented on this appeal is the correctness of the ruling of the trial court under the stipulation. In other words, whether the order, set out in full above, is a complete contract between the parties, to which the rule excluding parol evidence modifying or adding to its provisions applies. The question is not, from the standpoint of previous decisions of the court, entirely free from doubt. Within the rule applied in Wemple v. Knopf, 15 Minn. 440 (Gil. 355), 2 Am. Rep. 147,Kessler v. Smith, 42 Minn. 494, 44 N. W. 794, and Am. Mfg. Co. v. Klarquist, 47 Minn. 344, 50 N. W. 243, the evidence would be inadmissible. In each of those cases the court had before it a written order for the shipment of the goods, which was either formally accepted in writing or by the shipment...