Sunderland v. Hackney Manufacturing Co.

• Decision Date: 06 December 1915
• Parties: E. H. SUNDERLAND, Respondent, v. HACKNEY MANUFACTURING COMPANY, Appellant
• Court: Kansas Court of Appeals

181 S.W. 1192

192 Mo.App. 287

E. H. SUNDERLAND, Respondent, v. HACKNEY MANUFACTURING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 6, 1915

Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Roy W Rucker and Williams, Hunter & Guffin for appellant.

Joseph Fontron and Jones & Conkling for respondent.

OPINION

ELLISON, P. J.

--Defendant is a corporation resident of the State of Minnesota and on the 3rd of May, 1913, it sold to plaintiff an "Auto Plow Tractor," with attachments at the total cash price of $ 1875. The contract of sale with warranty was in writing. Plaintiff tried the plow on his farm and claimed that it failed to perform as warranted and that it was thereby worthless. He brought this action on the warranty alleging his damages at the price he paid and freight. He recovered judgment in the circuit court for $ 875.

There was a plea by defendant to jurisdiction of the person. This was based on the fact that the summons was served on one of defendant's repair men, who came into the state to plaintiff's farm to assist in finding out the cause of plaintiff's complaints of the plow and in putting it in such order that it would work. Plaintiff conceived the idea of obtaining jurisdiction over defendant by serving this employee with a summons. The difficulty with defendant's position, at this time, is that it has waived the point by a general appearance. After its plea to jurisdiction was overruled it applied for and obtained a change of venue from the court where the action was instituted to another circuit. This was such an appearance as waived the question of jurisdiction. [Julian v. Star Co., 209 Mo. 35, 107 S.W. 496; Houston v. Pulitzer Pub. Co., 249 Mo. 332.]

Defendant insists that the contract is a Minnesota contract and this, plaintiff denies, asserting that it is a Missouri contract because the latter State was the place of performance. There is nothing to be gained by following out this disagreement, for, besides the fact that the law of the two States on the controversy between the parties, is substantially the same, we have arrived at a conclusion as to the proper disposition of the case on other grounds.

The petition alleges that the contract contained a warranty whereby "defendant warranted and agreed that said auto plow should pull and would pull two fourteen-inch breaker bottoms six inches deep without overloading engine to said plow." At another part of the petition plaintiff alleges that in a conversation with defendant's agent before the contract was executed he explained that the soil on his farm was "gumbo" and that "said agent at said time stated to this plaintiff that said plow would do the work called for by the warranties contained in said contract, and said agent at said time warranted to this plaintiff that said auto plow machine would pull two fourteen-inch breaker bottoms six inches deep in plaintiff's land without overloading the engine to said machine."

The contract introduced at the trial failed to sustain the petition and defendant's demurrer to the evidence should have been granted. The contract under the heading of "Warranty," in bold type, contains the following: "The Hackney Auto Plow Tractor is purchased and sold subject to the following warranty and agreement: That the Tractor is warranted against defects in workmanship and material." The warranty and breach thus alleged in the petition relate to a totally different matter.

But it will be noted that the petition went beyond the written contract and alleged a verbal warranty made by defendant's agent just prior to the execution of the contract. It is fundamental law that all prior and contemporaneous conversations are merged into the written contract and that the contract, as written, cannot be added to or subtracted from by verbal testimony. In a recent case our Supreme Court said that "When men sit down to put a contract in writing and do so, the presumption is they write all there is of it. All prior or contemporaneous verbal conversations relating to the subject-matter are presumed merged in the writing. The precept to go by is: The spoken word flies; the written word remains." [Beheret v. Myers, 240 Mo. 58, 75, 76; Pearson v. Carson, 69 Mo. 550.]

To allow parol evidence of a verbal warranty when the writing is silent would be to add a distinct provision to the contract; and to permit parol evidence of a different, or additional, warranty from that contained in the writing would be an inexcusable change in the contract. [Jolliffe v. Collins, 21 Mo. 338; Seitz v. Brewers' Machine Co., 141 U.S. 510, 35 L.Ed. 837, 12 S.Ct. 46; Conant v. Nat'l Bank, 121 Ind. 323, 22 N.E. 250; Zanturjian v. Boornazian, 25 R.I. 151, 155, 55 A. 199; Detroit Ship Co. v. Comstock, 144 Mich. 516, 108 N.W. 286; Frost v. Blanchard, 97 Mass. 155; Bullard v. Brewer, 118 Ga. 918, 45 S.E. 711; McCormick Mach. Co. v. Allison, 116 Ga. 445, 42 S.E. 778; Battery Co. v. Ry. Co., 138 Iowa 369, 116 N.W. 144; Buchanan v. Laber, 39 Wash. 410, 81 P. 911; Lower v. Hickman, 80 Ark. 505, 97 S.W. 681; Vierling v. Iroquois Furnace Co., 170 Ill. 189, 48 N.E. 1069; Morgan Smith Co. v. W. P. & S. Co., 221 Pa. 165, 70 A. 738.] On this subject, it is said in Benjamin on Sales, sec. 621, that: "Where the written sale contains no warranty or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case, or to extend it in the latter, by inference or implication." In 1 Parsons on Contracts, 589, it is said in reference to the same subject that: "Where the contract of sale is in writing and contains no warranty, then parol evidence is not admissible to add a warranty." In the absence of fraud, the vendor "may be silent and be safe." Ib. 579.

But plaintiff seeks to avoid the force of this rule of law by the claim that the verbal contract in this case "was a collateral agreement, not contradicting the written contract, but explaining it." There is no branch of the law more liable to abuse, or rather misinterpretation, than that concerning verbal agreements collateral to written contracts. The law permits proof by parol testimony of a collateral agreement, rather as an exception under well-defined limits, but it must be admitted that some of the courts have enlarged the exception so as to entirely destroy the rule. The authorities above cited, while not affirmatively mentioning oral collateral agreements, clearly show that such agreements cannot be allowed to affect a complete written contract.

Where parties have reduced their contract to writing and it is complete on its face, unless there be fraud, accident, or mistake, no evidence in parol can be received to add to, or subtract from, its terms under the guise of proving a collateral agreement. Parol evidence of a collateral agreement to be admissible must not interfere with the terms of the contract, nor must it add to its obligations. The verbal collateral agreement must be independent and distinct from the written agreement and must not be inconsistent with it. And it must not be so closely connected with the transaction as to form a part of it. Therefore, whatever is embraced in the writing cannot be nullified, qualified, or added to by the collateral agreement. [Tracy v. Union Iron Works, 104 Mo. 193, 16 S.W. 203 (affirming same case 29 Mo.App. 342); Seitz v. Brewers' Machine Co., 141 U.S. 510, 35 L.Ed. 837, 12 S.Ct. 46; Slaughter v. Smither, 97 Va. 202, 206; McTague v. Finnegan, 54 N.J.Eq. 454, 460, 35 A. 542; Naumberg v. Young, 44 N.J.L. 331, 342.] Now a warranty in the sale of personal property is manifestly an important element of the contract. The vendor considers the presence, or absence, of a warranty as a substantial matter for him to think about in making up his mind whether to sell. Its absence in the writing is a part of the contract, for silence may be as forceful as speech. So it should be clear that when the parties to a written contract of sale omit a warranty, no warranty is made. In Seitz v. Brewers Co., supra, at page 517, Chief Justice FULLER makes a clear statement of the rule in the following language: "Undoubtedly the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if under the circumstances of the particular case, it may properly by inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And...