Phelps v. Whitaker

• Decision Date: 19 June 1877
• Citation: 37 Mich. 72
• Court: Michigan Supreme Court
• Parties: Horace Phelps and Melville F. Bigelow v. Charles Whitaker

37 Mich. 72

Horace Phelps and Melville F. Bigelow v. Charles Whitaker

Supreme Court of Michigan

June 19, 1877

Argued April 18, 1877 [Syllabus Material]

Error to Washtenaw. (Huntington, J.)

Assumpsit. Plaintiffs bring error. Affirmed.

Judgment affirmed, with costs.

Geo. M Buck for plaintiffs in error. Where a written contract is unambiguous, evidence that anything additional was agreed on by parol is inadmissible. Adair v. Adair 5 Mich. 210; Jones v. Phelps Id. 222; Savercool v. Farwell 17 Mich. 308; Stange v. Wilson Id. 342; Abell v. Munson 18 Mich. 306; Fitch v. Woodruff, etc. Iron Works 29 Conn. 82; Joliffe v. Collins 21 Mo. 338. Where merchandise was to be returned by a certain time if the vendee was not satisfied, and was not so returned, the sale was held absolute and the vendee barred from showing that the merchandise was not as represented. Moore v. Piercy 1 Jones (N. C. Law) 131; Wilson v. Davis 5 W. & S. 521; Jameson v. Gregory 4 Metc. (Ky.) 363; Quinn v. Stout 31 Mo. 160; Perkins v. Douglass 20 Me. 317. If the vendee reserves the privilege of returning it if it does not suit him, he must exercise his right to do so as soon as practicable. Nichols v. Guibor 20 Ill. 285. To rescind for breach of warranty, notice must be given as soon as the difference in quality is discovered between the article contracted for and that received, Hoadley v. House 32 Vt. 179; and if he claims not to be liable under the contract of sale, he must also return the merchandise delivered to him, Carney v. Newberry 24 Ill. 203; Wilbur v. Flood 16 Mich. 45; Ayers v. Hewett 19 Me. 281; Burton v. Stewart 3 Wend. 236; Mullin v. Bloomer 11 Ia. 360; Hubbardston Lumber Co. v. Bates 31 Mich. 168; Beverley v. Gas-Light Co. 6 Ad. & El. 829; Williams v. Ketchum 21 Wis. 432; Shaw v. Barnhart 17 Ind. 186; Shepherd v. Fisher Id.229; Cook v. Gillman 34 N.H. 556; De Armand v. Phillips Walk. Ch. 199; Wingate v. King 23 Me. 35; Willett v. Forman 3 J. J. Marsh 292; Christy v. Cummins 3 McLean 386; Love v. Oldham 22 Ind. 51; Minor v. Kelly 5 T. B. Monr. 272; Stewart v. Dougherty 3 Dana 479; Buford v. Brown 6 B. Monr. 553; Sanborn v. Osgood 16 N.H. 112; Poor v. Woodburn 25 Vt.234; Smith v. Smith 30 Vt. 139; he must offer to return it even when it is taken on trial (Ferguson v. Oliver 8 Sm. & M. 16 Miss. 332) and is not easily removable (Neaffie v. Hart 4 Lans. 4). The vendee waives his right to rescind by using articles held on trial as his own after the time within which he is to make his election. McCulloch v. Scott 13 B. Monr. 172; Akerly v. Vilas 21 Wis. 88.

A. J. Sawyer and Frazer & Hamilton for defendant in error, cited as to the admissibility of evidence, Clark v. Everhart 63 Penn. St. 347; Benton v. Martin 52 N.Y. 570; Seymour v. Cowing 1 Keyes (N. Y.) 532; Sutton v. Crosby 54 Barb. 80; Trevidick v. Mumford 31 Mich. 467; Foster v. McGraw 64 Penn. St. 464. Papers made at or before the making of a written contract and relating to its subject matter, are always admissible in evidence, and do not fall within the rule excluding testimony to change or vary a written contract. 1 Greenl. Ev. § 283 and cases cited; Bell v. Bruen 1 How. 169; Couch v. Meeker 2 Conn. 302; Bronson v. Green Walk. Ch. 56; Norris v. Showerman Id. 206; Bird v. Hamilton Id. 361; Norris v. Hill 1 Mich. 202. The representations of the vendor's agent and of their circular, were properly admitted to establish a contemporaneous substantive agreement relating to the same subject matter as the written agreement. Weaver v. Fletcher 27 Ark. 510; Lytle v. Bass 7 Coldw. (Tenn.) 303.

OPINION

Marston, J.

Plaintiffs in error brought an action of assumpsit to recover the price and value of a certain wind mill, pump and other things pertaining thereto, put up by them upon defendant's premises, upon his written request.

Defendant put in a plea of the general issue with a notice attached thereto, alleging breach of contract, breach of warranty, the obtaining of his signature to the written order by false and fraudulent representations, and failure of consideration.

Upon the trial plaintiffs introduced in evidence a written order from defendant, under which they furnished and put up the mill, which order was as follows:

"Chelsea, Nov. 22d, 1873.

Messrs. Phelps & Bigelow, Kalamazoo, Mich.--Please ship on or before the 24th inst., or at your earliest convenience to Chelsea, County of Washtenaw, State of Michigan, per R. R., one 10 foot Perkins' mill * * [pump, tank, etc., specifying them]. When the mill is up and in good running order, I agree to pay the man that puts it up, cash $ , to be on trial sixty days: when if it works to my satisfaction, I agree to pay as follows; (a failure of water in the well to be no excuse for the mill or pump). In one year from the first day of January, next, I promise to pay Phelps & Bigelow two hundred dollars, without interest, for the above described wind mill.

Charles Whitaker."

Daniel W. Finch, who was selling wind mills for Phelps & Bigelow, saw defendant and procured this written order at the time it bears date. He, Finch and one Adams afterwards put up the mill. The errors presented and argued in this Court, in favor of a reversal of the judgment, mostly grow out of, and relate to conversations with Finch and Adams at the time the order was taken, or while they were at work upon the mill, and to the introduction of a printed circular which had been shown to defendant at the time, and upon the strength of which he claimed to have given the order. The material portions of the circular were as follows:

"There is a remarkable beauty about the self-governing principle which is characteristic of this mill alone. The rudder is hung by hinges on one side of the turn table, and the wheel on the other. When the wind blows stronger than the wheel ought to bear, the tendency is to fold the wheel and rudder together. There is a proper amount of speed for the wheel which it receives in ordinary winds, but in storms when the wheel would run too fast if it stood directly in the wind, it turns itself partly out of the wind and keeps up its proper motion. If the wind becomes very severe the wheel and rudder will gently fold together and remain still until the wind dies away. Thus the mill governs itself perfectly."

Warranty.--"To substantiate the above facts we warrant the Perkins mill to work in heavier or lighter winds; to do its work as well or better; to be less liable to get out of order from storms, ice or any other cause; to be simpler and more durable than any other mill in the market. We put up mills on trial. If you are in want of one send your order for a Perkins mill and we guarantee satisfaction or no sale."

A preliminary objection taken to the cross-examination of Finch may first be noticed, viz.: that the questions asked were improper upon cross-examination, as the witness was called only for the purpose of proving the execution of the contract sued upon. This witness may have been called by plaintiffs for the purpose stated, but having proved the execution of the contract, they then proceeded to prove by him that he afterwards put up the mill, and furnished it with the things mentioned in the order, and that when he put it up and left, the mill was all in good condition, in good running order, and that he had been where the mill was and seen it since that time. Finch having taken the order for the mill and afterwards put it up as testified to by him, we think defendant, upon cross-examination, had a right to call out what occurred and was said between him and defendant relating to this matter, and out of which the contract grew, and also to show by him, if they could, that he did not put and leave the mill in good running condition as he had testified to on direct examination.

It was also urged that such evidence, as to conversations, was open to objection as tending to change and enlarge the terms of the written contract between the parties, by parol evidence. We may consider this class of objections and those relating to the admission of the circular, which were similar, together.

The representations by Finch, and those contained in the printed circular, made to and shown defendant, during the negotiations for the sale, and which resulted in the order being given, were clearly admissible in evidence, and the written order of defendant did not constitute such a contract in this case, as would exclude this evidence. Every principle, both of law and justice, should hold a party bound by, and responsible for, the representations, whether oral or written, which he holds out, and relying upon which a party gives an order, as in this case. All such representations and the declarations made by plaintiffs' agents when afterwards sent to remedy defects in the mill were properly received in evidence. Kimball & Austin Manufacturing Co. v. Vroman 35 Mich. 310; Ochsenkehl v Jeffers 32 Mich. 482; Doty v. Martin Id. 462; Whiting v. Hill 23 Mich. 399; Miller v. Barber et al. 66 N.Y. 558; Hoyt v. Jeffers 30 Mich....