Victor Safe & Lock Co. v. O'Neil

• Decision Date: 06 January 1908
• Citation: 93 P. 214,48 Wash. 176
• Court: Washington Supreme Court
• Parties: VICTOR SAFE & LOCK CO. v. O'NEIL et al.

93 P. 214

48 Wash. 176

VICTOR SAFE & LOCK CO. v. O'NEIL et al.

Supreme Court of Washington

January 6, 1908

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by the Victor Safe & Lock Company against B. F. O'Neil and another, copartners. Judgment for plaintiff, and defendants appeal. Affirmed.

Gallagher & Thayer, for appellants.

Happy &amp Hindman, for respondent.

HADLEY C.J.

This is an action to recover the purchase price of a bank safe. Plaintiff is a corporation with its home office at Cincinnati, Ohio, and the defendants are copartners, under the firm name of the 'Bank of Latah,' doing business at Latah, Wash. The complaint alleges that in consideration of the sum of $1,400, to be paid in the manner hereinafter specified, the plaintiff agreed to sell and deliver to the defendants f. o. b. car at Latah, Wash., one Victor manganese steel screw door bank safe; that the defendants agreed to purchase and receive the safe, and to pay the plaintiff the said sum of $1,400, as follows: To deliver to plaintiff, upon compliance of the latter with said contract, one double-door Hall safe, with burglar-proof chest, f. o. b. car at Latah Wash., and to pay the plaintiff the sum of $950 cash. It is further alleged that the plaintiff fully performed all conditions imposed upon it by said contract, and delivered to defendants at Latah the Victor safe mentioned in the contract, but that the defendants have refused to deliver to plaintiff the Hall safe mentioned, or to pay said sum of $950, or any other sum. Based upon the above allegations, the plaintiff brought this suit to recover the full sum of $1,400, the purchase price of the safe. The defendants answered that about September 18, 1905, one Marcellus, the representative of Glass & Prudhomme, the agents of plaintiff at Portland, Or., visited the defendants at Latah, and solicited them to purchase a safe from the plaintiff through said agents; that in order to induce the defendants to make the purchase, said Marcellus represented that Glass & Prudhomme had a safe them at Portland, which they could ship immediately from Portland to the defendants that the defendants were anxious to obtain the immediate delivery of any safe they might purchase, and made such fact known to said Marcellus and to said agents, and that they would not purchase any safe that could not be delivered immediately; that relying upon said representations, and believing that the plaintiff had a safe in Portland which it could and would ship to the defendants immediately they placed the order for the purchase of the safe from plaintiff. It is alleged that the plaintiff did not deliver said safe within a reasonable time or at all, and that defendants never accepted the safe mentioned in the complaint. The cause was tried by the court without a jury, and resulted in a judgment against the defendants for the full purchase price of the safe with interest. The defendants have appealed.

Appellants have assigned a number of specified errors; but the appeal involves the one question, whether the judgment is justifiable under the facts. The order from appellants for a safe is shown by the evidence as follows: By a partly printed and partly written instrument, which is designated as 'Specifications Victor Manganese Steel Screw Door Bank Safes,' upon the same page of which heading follow detail specifications of a safe as to size, materials, and workmanship. On the next page, or reverse side of the sheet containing such specifications, appears a written order for a safe of which the following is a copy 'The Victor Safe and Lock Company, Cincinnati, Ohio--Gentlemen: Please furnish us in accordance with the foregoing specifications one No. 49 Victor Manganese Steel Screw Door Bank Safe, carefully packed and delivered f. o. b. cars at Latah, Wash. Bill to the Bank of Latah, Latah, Wash. Ship as soon as possible via freight. On receipt of same in good condition will pay to your order the sum of fourteen hundred dollars as follows: Nine hundred & fifty dollars ($950) in current funds & one (1) double door Hall safe with burglar proof chest f. o. b. Latah, Wash. This contract covers all of the agreements between the parties hereto, and all claims for verbal agreements of any nature not embodied herein are waived, and order is taken subject to the approval of the Cincinnati office of the Victor Safe & Lock Company. All orders must be on this blank. Witness my hand and seal this 25th day of Sept. 1905. Bank of Latah. [L. S.] Wm. A. McEachern. [L. S.]' It will be seen that the order refers particularly to the said specifications, was made by the appellants, and was addressed to the plaintiff at its home office in Cincinnati. It expressly declares that it contains all the agreements between the parties, that all claims for verbal agreements of any nature not embodied in the writing are waived, and that the order was subject to the approval of the Cincinnati office of the plaintiff. Thus the appellants solemnly said, over their own signatures, that the writing contains the whole contract between the parties, and that any further verbal agreements were waived. By their answer, and by evidence received at the trial, they, however, sought to show a verbal agreement that the safe was to be shipped from Portland, Or., immediately upon the receipt of the order by Glass & Prudhomme. By the terms of the written order such evidence became incompetent, it being evidence entirely inconsistent with the written order. The order not only made no mention of such agreement as to immediate shipment from Portland, but in effect negatived the existence of such agreement, for the reason that it was addressed to the respondent at its Cincinnati office, and was expressly made subject to the approval of that office. The evidence shows that, in the regular course of...