Mineral Ridge Mfg. Co v. Smith

• Court: Supreme Court of West Virginia
• Writing for the Court: WILLIAMS
• Citation: 91 S.E. 817
• Parties: MINERAL RIDGE MFG. CO. v. SMITH.
• Decision Date: 06 March 1917

91 S.E. 817
(79 W.Va. 736)

MINERAL RIDGE MFG. CO.
v.
SMITH.

Supreme Court of Appeals of West Virginia.

March 6, 1917.

(Syllabus by the Court.)

Error to Circuit Court, Mason County.

Action of assumpsit by the Mineral Ridge Manufacturing Company against A. E. Smith, doing business, etc. Judgment for defendant, and plaintiff brings error. Affirmed.

Rankin Wiley and Chas. E. Hogg, both of Pt. Pleasant, for plaintiff in error.

George S. Wallace, of Huntington, for defendant in error.

WILLIAMS, J. Defendant seeks by this writ of error to reverse a judgment recovered against him in an action of assumpsit for breach of promise to pay a stipulated price for having his coal tipple equipped with certain machinery for screening, weighing, and loading coal. The contract sued on was reduced to writing, and is in the form of a proposition. It was submitted to and accepted by defendant on the 20th of May, 1912. Defendant pleaded the general issue, gave notice of his purpose to recoup damages, and also filed two special pleas averring what the several parts of the machinery were intended to do, and alleging particularly wherein they fail to perform the work intended by the defendant and contemplated by said contract, and further that the machinery never did operate without vibration, as contemplated by the contract; wherefore he claims he has been damaged to the extent of $4,167. Defendant operates his coal mine in the name of Jackson Coal & Mining Company.

The first assignment of error relates to the refusal of the court to permit defendant to prove, by parol testimony, what work he intended the machinery to perform. The plaintiff having expressly guaranteed the machinery to perform the work "intended by the buyer, " it is insisted that parol evidence was admissible to explain his intention, on the ground that it was not expressed in the written contract, and therefore the contract was incomplete in that respect, and consequently parol evidence was admissible to sup-

[91 S.E. 818]

ply the omission and explain the ambiguity. Admitting that parol evidence, even of the previous or contemporaneous declarations of the parties, is sometimes admissible to explain latent ambiguities in written contracts, this is not a case in which that rule, or exception rather to the general rule respecting the admissibility of parol evidence to contradict, vary, or add to the terms of a writing, can be applied, for the reason that no latent ambiguity is made to appear. Neither do we agree with the learned counsel for defendant in his contention that the contract is silent as to defendant's intention. The contract is as follows:

"Jackson Coal & Mining Co., Hartford, W. Va.—Gentlemen: We propose to furnish you with the following equipment for the price and terms as follows:

"Shaker Screens.—Two shaker screens each hung on 7 chilled iron wheel supports, with bearings 2 1/4" diameter. Sides of screens to be 1/4" plate; screen plates 1/4" thick—perforations to suit you. All corner angles to be 5/16" thick; top and cross angles 1/4" thick; eccentrics to be set 180 degrees, or opposite to each other, so screens will operate without vibration. Driving shaft to be 3 7/16" diameter, with 60" fly wheel, all to be geared to suit the 15 H. P. motor furnished by you, with necessary shafts, bearing, gears, etc., and to be built in accordance with B. P. No. B-2183.

"Hoisting Rigging.—We are to furnish all the necessary iron work to install a new hoisting apparatus for your weigh pan, excepting only the counter weights.

"Weigh Pan.—One-back dumping weigh pan built with 5/16" bottom plates, 34" side and end plates, all angles to be 5/16" thick, together with all necessary iron work to hang and operate same.

"End Loader.—One curved chute end loader as shown on B. P. B-2183, together with all necessary iron work to hang and operate same.

"Bins.—One (1) slack bin under nut screen and chutes to shaker screen and slack bin and bin under slack part of shaker.

"One (1) bin under nut screen with sliding door; one (1) bin under egg screen with sliding door; also furnish one (1) sliding door for slack bin, which you are to build in accordance with the plans we furnish for bin. In furnishing these bins it is part of the contract, that we furnish all necessary hangers to attach to the structure and levers to operate the sliding doors. The load plates in egg and nut bins are to be 34" plate; all other plates used Vie".

"Box Car Loader.—One box car loader and chute from end loader with double outlet together with all necessary supporting irons to attach to structure and operate this to be similar to the one shown on E. L. Sternberger blueprint, except it will have to be located at side of tipple— but it will operate along similar lines.

"All the before mentioned material to be in accordance with B. P. No. B-2183, plans to be furnished and accepted, and all workmanship and material to be of the very best. We to guarantee it to perform the work intended by buyer and will replace any part proving defective in Workmanship and material for one year from date of contract.

"Price.—$1,845.00 F. O. B. Mineral Ridge, Ohio.

"Terms....