Mineral Ridge Mfg. Co. v. Smith.

• Decision Date: 06 March 1917
• Court: West Virginia Supreme Court
• Parties: Mineral Ridge Manufacturing Co. v. Smith.

79 W.Va. 736

Mineral Ridge Manufacturing Co.

v.Smith.

Supreme Court of Appeals of West Virginia.

Submitted February 20, 1917.

Decided March 6, 1917.

1. Evidence-Parol Evidence Contract to' Furnish and Install Ma-

chinery.

Where plaintiff agrees in writing to furnish certain machinery and install it in defendant's coal tipple, guaranteeing it to perform the work intended by the buyer and specifying in writing the character of work it will do, parol evidence is not admissible to prove what the buyer intended, at the time of its execution, it would do. (p. 737).

2. Appeal and Error Sales Compliance with Guaranty Verdict.

Whether such guaranty has been complied with is a question of fact to be determined by the jury, and when the testimony in respect thereto is so conflicting as to render the matter uncertain, the finding of the jury is conclusive, (p. 742).

3. Evidence Declaration Terms of Written Contract.

Evidence of prior or contemporaneous declarations of the parties to a written contract containing no latent ambiguity, is not admissible to explain its terms, (p. 742).

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 CJias. E. Hogg, for plaintiff in error. George S. Wallace, for defendant in error.

Williams, Judge:

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 re- coup 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 supply 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 wre 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, 1-4" 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 1-4" plate; all other plates used 3-16".

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 blue print, 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 One-third contract price to be paid on receipt of Bill-of-lading, showing material has been shipped, one-third thirty days after first shipment, and balance on acceptance.

ERECTION We will furnish a skilled mechanic to superintend the erection and starting of the plant, at the rate of $6.00 per day and traveling expenses, one round trip. You to pay for his work every regular pay-day.

SHIPMENT At this writing we can promise 35 days shipment, and on receipt of notice material has been received will at once send the mechanic to erect same.

A working drawing to be made up at once and sent to you for your approval, and changes you may desire then, will be made without additional cost, if they do not require additional material.

We are also to furnish one (1) dump plate, 5 ft. long x 6 ft. wide, with fly 2 ft. wide opening, and one (1) hipped plate to bolt on dumping plate. This is part of the contract price.

Yours very truly,

Mineral Ridge Mfg. Co., Thad M. Boggs, Salesman.

Accepted May 20, 1912.

The Jackson Coal & Mining Co., By A. E. Smith." Appended to or indorsed on the paper was also the following memorandum, which is a part of the contract, viz.:

"Take off slack to slack bin. Load Nut on 3 track. Load Nut and Slack on 3 track. Load Mine Run on 1 track. Load Nut and Egg on 2 track. Load Egg on 2 track. Load Lump on 1 track. Load Lump and Egg on 1 track. Load Box Cars on 1 track, with...