Rowe v. Emerson-Brantingham Implement Co.

• Citation: 201 P. 316,61 Mont. 73
• Decision Date: 10 October 1921
• Docket Number: 4446.
• Parties: ROWE ET AL. v. EMERSON-BRANTINGHAM IMPLEMENT CO.
• Court: United States State Supreme Court of Montana

201 P. 316

61 Mont. 73

ROWE ET AL. v. EMERSON-BRANTINGHAM IMPLEMENT CO.

No. 4446.

Supreme Court of Montana

October 10, 1921

Appeal from District Court, Chouteau County; John W. Tattan, Judge.

Action by Wearn Rowe and others against the Emerson-Brantingham Implement Company. Judgment for defendant, and from an order refusing a new trial, plaintiffs appeal. Affirmed.

H. S McGinley, of Ft. Benton, for appellants.

McKenzie & McKenzie, of Great Falls, for respondent.

COOPER J.

This action was brought to recover damages for a breach of warranty of the quality and fitness of a threshing machine of a specified make, and to cancel the notes given for its purchase price. The original written order was executed September 6, 1915, and contained the usual provisions intended to safeguard the interests of the seller. The answer admits the sale, but denies the breach. It also sets forth a counterclaim in which it is alleged that the notes sought to be canceled were executed and delivered to evidence the purchase price of the machine, and that the mortgage thereon was given as security for the notes. A decree foreclosing the mortgage is also asked.

Appellants' counsel limits the inquiry to the single question of the admissibility of oral representations, not embodied in the ultimate written contract, warranting the capacity of a thresher of a specified make to thresh and clean alfalfa. The warranty set forth in the contract was that the thresher was "well made, of good material, and with proper use and management" would "do as good work as any other machine of the same size, manufactured for a like purpose."

The trial court, upon objection, excluded all evidence touching the prior statements and representations of the local agent in making the sale, and denied the plaintiffs' offer to prove the following facts: That the plaintiffs had no previous experience with a machine of the character in question; that their attention was not called to any portion of the written contract, except those designating the machinery and attachments purchased; that they had no opportunity to examine the machinery before its receipt, and that, while it was being operated by one of defendant's experts, one of the screens was blown to pieces owing to defects in its manufacture; that prior to the threshing season of 1916 the plaintiffs notified the defendant, through its local agent, of that fact; that defendant agreed at divers times to replace the defective parts and to put the thresher in running order so that it would thresh and clean alfalfa seed; but that up to the time of the commencement of the action, defendant having failed to live up to its agreement, plaintiffs notified it that they would consider the contract at an end by reason of the breach of warranties and that they (the plaintiffs) have since that time held the machine "subject to instructions from the defendant as to where to ship and deliver the same." Thereupon the plaintiffs rested. The court adjudged the aggregate amount of the notes to be due and owing from plaintiffs, and rendered and entered judgment foreclosing the mortgage given as security therefor. This appeal is from an order refusing plaintiffs a new trial.

One of the grounds upon which plaintiffs seek to evade payment of the notes is that they were not given an opportunity to examine the machine before its delivery, and that the breaking of one of the screens proved a violation of the provisions of sections 5109, 5110, and 5111 of the Revised Codes, to the effect that a seller of an article of his own manufacture warrants it to be free from latent defects; that improper materials have not knowingly been used in its manufacture; that it is reasonably fit for the purpose for which it was sold, and that its inaccessibility to the buyer carries a warranty that it is sound and merchantable. It is true that these provisions enter into and become a part of the contract; nevertheless they are to be construed in connection with the express stipulations of the agreement. If defects in the machinery are later discovered, the contract specifies the things which shall be done by the buyer in order to afford the seller an opportunity to repair the breaks or supply the missing parts. They are as follows:

"It is also agreed and understood that no agent or employé of said company (officers of the company not included) is authorized to alter, change, modify, or waive this warranty, or any part thereof, or to make any other or different warranty, or that any notice to any agent or employé of said company, or any act at any time, of any agent or employé, shall not constitute a waiver of the written notices herein provided for, nor a waiver of any other stipulation in this warranty. Workmen, salesmen, and mechanical experts employed by said company in and about starting, adjusting, and repairing said machinery are not agents of said company, and it is hereby mutually agreed that said company is not bound by any statements, promises, or declarations made by them or any of them in reference to said machinery. * * * It is hereby expressly agreed that all claims for damages against said company, by reason of the nonperformance of machinery above, are hereby waived."

It is also provided that failure to give the written notice of defects within six days from date of its first use or to return the machinery to the place whence it was received within the same period--

"shall be conclusive evidence of the fulfillment of the warranty, and full satisfaction of the purchaser, who agrees to make no claim thereafter against said company, or to make any defense to the notes given therefor on account of any breach of the warranty."

If in the warranty that the machinery ordered is "to be well made, of good material, and with proper use and management to do as good work as any other machine of the same size manufactured for a like purpose" was comprehended a warranty that the thresher to be furnished would thresh and clean alfalfa as well "as any other machine of the same size manufactured for a like purpose," the written contract was complete and must be taken as a full expression of the agreement between the parties. This is so because therefrom it will be presumed that every material item and term has been placed therein. In such case parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed. The rule forbids addition by parol where the writing is silent, as well as to vary where it speaks. 2 Phil. Evidence (Cow. & H. Notes) 669; Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380; Hei v. Heller, 53 Wis. 415, 10 N.W....