National Cash-Register Co. v. Blumenthal
| Decision Date | 08 May 1891 |
| Citation | 48 N.W. 622,85 Mich. 464 |
| Court | Michigan Supreme Court |
| Parties | NATIONAL CASH REGISTER CO. v. BLUMENTHAL. |
Error to circuit court, Ogemaw county.
Action by the National Cash Register Company against Bernard Blumenthal. Defendant appeals.
Nelson Sharpe, for appellant.
Markey & Hall, for appellee.
Upon the 27th day of March, 1889, the defendant signed his name to the following agreement: On the back of said order or agreement there is the following indorsement: The testimony shows that afterwards, on or about the 10th day of April, 1889, the plaintiff shipped to the defendant the cash register mentioned in the contract, in accordance with its terms, and at the end of five days after shipment, forwarded to the defendant the drafts therein provided for, for defendant's acceptance, and also a request for the payment of the $25 mentioned in the contract. The defendant refused to accept the drafts, and after five days reshipped the register to the plaintiff. He also wrote the following letter: Some correspondence took place between the parties, but no adjustment of their difficulties was arrived at; and plaintiff brought suit upon the contract for refusing to accept the drafts provided for in that instrument. Upon the trial of the case the defendant offered to prove, under a plea of the general issue, that there was a contemporaneous verbal agreement to the effect that he was to have five days in which to try the machine and, if it was not satisfactory to him, he might return it, and the trade would be off. The court refused to permit such testimony, on the ground that the contract appeared to be a full and complete one, and to embrace all the agreements between the parties thereto up to the time that it was signed, and became binding upon both parties as soon as the plaintiff performed its part of the agreement, although not signed by the plaintiff. But he further held that the defendant might show an agreement subsequent to the signing of the contract by him, and to the effect that he should have five days in which to try the machine after it arrived, and, if it was not satisfactory, that he could return it, and that would end the contract between the parties. Under this ruling of the court, he introduced testimony tending to show that there was such a subsequent parol agreement. This was denied by the agent of the plaintiff who sold the machine, and the question was submitted to the jury, under the instruction of the court, to the effect that, if the jury found that such a contract was made after the signing of the agreement, then the plaintiff could not recover. The jury found a verdict for the plaintiff. The error, then, which we are to consider is whether or not it was competent for the defendant to show that contemporaneously with the signing of the written agreement there was a verbal agreement to the effect that he should receive the machine on trial, and should have five days in which to try it, and, if not satisfactory to him at the end of that time, that he might return the machine. We think the court is correct in its construction of this agreement. It contains all the material stipulations of a contract, and, when accepted and acted upon by the National Cash Register Company, was binding and conclusive upon both parties. The agreement itself stated, over Mr. Blumenthal's own signature, that "this contract covers all agreements between the parties hereto." While this might not be conclusive, if it was apparent upon the face of the contract that it was not a full and complete instrument, as between the parties, yet...
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