The Dempster Mill Manufacturing Company v. Fitzwater

• Decision Date: 16 July 1897
• Docket Number: 210
• Citation: 6 Kan.App. 24,49 P. 624
• Parties: THE DEMPSTER MILL MANUFACTURING COMPANY v. S. H. FITZWATER et al
• Court: Kansas Court of Appeals

49 P. 624

6 Kan.App. 24

THE DEMPSTER MILL MANUFACTURING COMPANY v. S. H. FITZWATER et al

No. 210

Court of Appeals of Kansas, Northern Department, Eastern Division

July 16, 1897

July 16, 1897.

Error from Nemaha District Court. Hon. J. F. Thompson, Judge. Reversed.

Judgment reversed.

Wells & Wells and F. N. Prout, for plaintiff in error.

S. K Woodworth, for defendants in error.

MAHAN P. J. McElroy, J., concurring. Wells, J. not sitting.

OPINION

MAHAN, P. J.

It is difficult in this case to determine of what action or actions of the court the plaintiff in error complains. It is an action brought in the court below by the plaintiff in error to recover the price of certain machinery which it claims to have sold to the defendants upon a written contract set out in its petition, and for the time and expense of an expert furnished under another written contract set out in the petition. The first writing is, in substance and effect, an order by one of the defendants in behalf of all for a well-boring machine. There is appended to this a guaranty. The other writing is an order addressed to the plaintiff Company to send along with the machine an expert to run it.

The answer denies that the writing constituted the contract of purchase of the machinery and denies that there was any written or printed guaranty whatever, but avers a verbal contract and verbal representations amounting to a warranty that the machinery would perform a certain character of service; that it had failed and was totally worthless; and that the defendants had been put to loss and damage by reason of the breach of warranty. A counterclaim therefor is set up and judgment asked for $ 376.

By an examination of the record, it seems that the first contention of counsel for plaintiff in error is that this answer stated no defense, upon the ground that it was an attempt to vary and extend the terms of a written agreement by parol evidence. To be sure, if there was an express warranty in writing or printing agreed upon by the parties, there could be no other or additional warranty proven except that expressed in the writing. But the answer squarely presents the issue, Was that any part of the contract? The other part of the writing is simply an order for the machinery, expressing the price for which it was sold and the terms of payment, and the court had a right to assume that the parties did not intend this document to be a complete and final statement of the whole transaction between them. This is the effect of the answer, and there is no question but that it stated a good defense.

The second contention is that the court erroneously admitted parol evidence, under this answer, of a verbal agreement differing from the warranty set out in the plaintiff's petition and covering matters not expressed in the other documents, but not in any way modifying or changing the tenor or effect or terms of these writings. In this there was no error, 1 Greenleaf on Evidence, § 284a; 7 Am. & Eng. Encyc. of Law, 92, subdivision 2; Dodge v Oatis, 27 Kan. 762; Weeks v. Medler, 20 id. 57; Babcock v. Deford, 14 id. 408.

The next contention seems to be that the court erred in refusing to instruct the jury as required by the plaintiff. The first and third instructions proposed, about which complaint is made, are based upon the proposition that the defendants were concluded by the writings. This contention is untenable, as we have heretofore shown.

The second paragraph of the instructions requested by the plaintiff should have been given. The evidence showed that the defendants were each to be liable and bear the burden of the...