Rogers v. Zielinski

• Decision Date: 08 May 1961
• Docket Number: No. 10102,10102
• Citation: 92 R.I. 479,170 A.2d 294
• Parties: Winifred F. ROGERS v. Norbert U. ZIELINSKI. Ex.
• Court: Rhode Island Supreme Court

Page 294

170 A.2d 294

92 R.I. 479

Winifred F. ROGERS v. Norbert U. ZIELINSKI.

Ex. No. 10102.

Supreme Court of Rhode Island.

May 8, 1961.

Alexander G. Teitz, Newport, for plaintiff.

Corcoran, Peckham & Hayes, Patrick O'N. Hayes, Newport, for defendant.

FROST, Justice.

This is an action of assumpsit to recover damages growing out of the sale of a used Mercedes-Benz automobile by the defendant to the plaintiff. The case was tried before a justice of the superior court sitting without a jury and resulted in a decision for the defendant for costs. The case is here on the plaintiff's single exception to the trial justice's decision.

The amended declaration contains two counts, the first being on an express warranty whereby defendant promised plaintiff that the automobile was in excellent condition and was guaranteed for 64,000 miles, but that actually it was not in first-class mechanical condition, that it did not have a guarantee of 64,000 miles, and that plaintiff was forced to spend large amounts to put it in condition. In the second count plaintiff declares on an implied warranty as to the condition of the automobile. The plea is the general issue.

The evidence shows that a considerable amount was expended by plaintiff in making repairs on the automobile.

The trial justice in her decision carefully analyzed the evidence, found that there was no credible evidence from which one could conclude that there was any reliance by plaintiff on the skill or judgment of defendant, and therefore concluded that no implied warranty as contended ever arose in connection with the transaction. After a consideration of the evidence we cannot say that the trial justice was clearly wrong in such conclusion.

As to the express warranty declared on in the first count, a bill of sale signed by defendant was introduced in evidence which recited the consideration of $10 and other valuable considerations, described the automobile, and contained a covenant as to title.

Oral testimony was offered during the trial, to which no objection was taken, tending to prove misrepresentation in the nature of a breach of warranties. The trial justice stated in her written decision: 'This evidence cannot be accepted because it is an attempt to vary the terms of a written instrument by parol evidence. The contract is complete and regular on its face and no evidence may be accepted varying or adding to the terms of the contract. The misrepresentations in the nature of breaches of warranty, if they were made, were made prior to execution of contract.'

The trial justice's decision makes very clear her position that the bill of sale is the agreement of the parties, and being in writing may not be undermined or added to by parol evidence of statements or conversations prior in time to its delivery by defendant. She relies upon D. W. Flint Motor Sales, Inc. v. Crofton, 54 R.I. 160, 171 A. 236, and Gaddes v. Pawtucket Institution for Savings, 33 R.I. 177, 80 A. 415. We do not question the propriety of the holdings in these cases. The plaintiff, however, very strongly urges that the bill of sale does not contain the whole agreement of the parties, and that the oral testimony which the trial justice declined to pass upon in no way contradicts anything in the bill of sale which was signed only by defendant. It is true that it was delivered to plaintiff and accepted by her. It does not contain the purchase price which was $3,600 and contains a covenant only as to title.

The question of whether the trial justice erred in refusing to consider any oral evidence of the making and breach of express warranties is the sole question raised by plaintiff in her brief wherein she seeks to show that the trial justice committed error in her decision for defendant.

It may be pointed out that the bill of sale contains no disclaimer and no statement of any sort to the effect that it contains the whole agreement between the parties.

In Quinn v. Bernat, 80 R.I. 375, 97 A.2d 273, 274, relied upon by the trial justice, the agreement of sale was signed by the parties and it was expressly stated therein that the Ford automobile was accepted on the basis of its condition 'without any express or implied warranties, agreements, representations, promises or statements unless expressly set forth in this contract at the time of purchase.'

Perhaps there is no case in our own reports which sets out more clearly the application of the parol evidence rule and the circumstances under which there are exceptions to it than Supreme Woodworking Co. v. Zuckerberg, 82 R.I. 247, 107 A.2d 287. After setting out the rule the court states, 82 R.I. at page 252, 107 A.2d at page 290: 'On the other hand this court, in harmony with generally-accepted principles, has recognized...