J. B. Colt Co. v. Springle

Yaesee, J. The plaintiff’s exceptions contest the admissibility of evidence that plaintiff’s agent stated that the lighting plant would last “from ten to twenty-five years; that if same went bad company would make all necessary repairs; that generator was made of 5-16 galvanized steel; that thickness of generator was 12-16, and that plaintiff would-guarantee same (plant) for ten years.” This evidence was all admitted on the first issue. *230 Tbe contract, tbe execution of wbicb was admitted, contained tbe following provision: “It being understood that tbis instrument, upon sucb acceptance, covers all of tbe agreements between tbe purchaser and tbe company, and tbat no agent or representative of tbe company bas made any statements, representations or agreements, verbal or written, modifying or adding to tbe terms and conditions herein set forth. It is further understood tbat upon tbe acceptance of tbis order, tbe contract so made cannot be canceled, altered or modified by tbe purchaser or by any agent of tbe company or in any manner except by agreement in writing between tbe purchaser and tbe company acting by one of its officers.” And tbe following warranty: “It is agreed tbat in accepting tbis order tbe company warrants tbe apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and tbat it is on tbe permitted list of tbe National Board of Fire Underwriters.” Tbe defendant, L. L. Springle, testified tbat tbe plant was satisfactory at time of installation, and that be “bad full opportunity to read contract and read same.” There is no evidence tbat there was fraud in tbe factum. Tbis defendant says tbe plant was satisfactory at time of installation and tbat be wrote several letters to plaintiff, after tbe plant bad been in use, asking for leniency in terms, and stating be was doing all in bis power to pay tbe purchase price, at one time saying be could not pay on account of failure to obtain a contemplated loan, and in some, enclosing payments, and in others, promising to pay, when possible. Tbe defendant says, also, tbat tbe “statements of agent applied only to future service of plant.” In tbe light of these statements by defendant, tbe evidence objected to is not competent. Tbe contract, wbicb was read by tbe defendant, stipulates expressly against these oral declarations. Upon tbis record, there is no fraud and misrepresentations in procuring tbe defendants’ signatures to tbe contract, or to tbe “purchaser’s statement” as to tbe installation. He cannot, now, show a parol warranty other than, or differing from, tbe written warranty in tbe contract. Machine, Co. v. McClamrock, 152 N. C., 405; Harvester Co. v. Carter, 173 N. C., 229; Murray Co. v. Broadway, 176 N. C., 151; Guano Co. v. Livestock Co., 168 N. C., 447; Simpson v. Green, 160 N. C., 301. However, tbe jury did not answer tbe issues as to tbe warranty in tbe contract, because they were instructed not to do so if they answered the issue as to fraud in favor of tbe defendants. Hence, tbe defendants are entitled to have these issues again submitted to a jury. Therefore, there will be a New trial.