Dover & Son v. Iroquois Manufacturing-Co.

Bioodworti-i, J. The Iroquois Manufacturing Company sued Dover & Son for the price of one barrel of adamite at thirteen cents per pound.. The written order given the salesman of plaintiff contained the following words: “Yerbal agreements will not be recognized; they must be incorporated in writing.” One of the pleas filed by the defendant was the following: “ For further answer defendants say that a fraud has been practiced upon your defendants; that this adamite did not come up to the representations; that it is entirely a different commodity from that which was bought; that defendants were ignorant of what the word ‘ adamite ’ meant; that it was not suitable for the purpose for which it was bought, and in fact could not possibly have been used at all for the purposes for which it was bought; that the [136] agent who sold this commodity wilfully and fraudulently misrepresented and gave the wrong meaning and description of what this commodity was.” Upon the trial of the case the defendant sought to prove that the salesman told him that “adamite was a kind of stuff that would stop leaks;” that it “would stop leaks on a house;” that plaintiff put it on the roof of his warehouse, and it would not stop the leaks, and that it was wholly unfit for the purpose for which it was bought. The court refused to allow the defendant to make proof of the above “ upon the ground that it contradicted and varied the terms of a written contract.” We think this was error requiring the grant of a new trial. The written contract contained no warranties. This case is controlled by the principle announced in Hartwell Grocery Co. v. Mountain City Mills Co., 8 Ga. App. 727 (70 S. E. 48), and the cases cited in the opinion in that case. In that case Judge Powell said (pp. 728, 729, 730) : “ There is a difference between admitting parol evidence to contradict or to vary the terms of a written contract, or to set up new and distinct terms not expressed in the contract, and admitting parol evidence to identify the subject-matter of the contract or to explain ambiguous terms in it. . . In this case we have a contract which does not describe its subject-matter in such language that the court can know without the aid of parol testimony what it means. The contract called for so many sacks of ‘ W. than snow ’ and for so many sacks of ‘ St. Elmo.’ These words are arbitrary names, the meaning of which is unintelligible to the court without the aid of parol evidence. They are words which carry with them certainty of meaning only through the application of the maxim, ‘that is certain which can be made certain.’ They are ambiguous when standing alone; hence, before the court could give either party any relief against the other as to any matter growing out of the contract and involving an understanding of its terms, it would be necessary that the meaning of these terms be disclosed to the court. If the writing itself, or. if any other writings contemporaneously executed, disclosed this meaning, it would be the. duty of the court, ordinarily, to look to these writings, rather than to oral proof to find this meaning. But since there are no writings giving this meaning, and since the court cannot give either to the plaintiff or to the defendant any relief under the contract until the meaning is known, it becomes [137] necessary to look elsewhere for the meaning. Since the words are arbitrarily used, it is the duty of the court to find out what they meant to the parties when the contract was made, and we know of no fairer way of determining the intention .of the parties in using this language than to find out what one said to the other when the contract was made; and this is what the defendant attempted to show and what the court refused to allow it to show. . . To allow the defendant to show what the plaintiff’s salesman told the defendant these terms stood for in the contract is not to set up any new -or outside verbal agreement of the salesman, in contradiction or variance of the contract, but is merely to aid the court in carrying out the identical written contract, according to its very word and letter, by using the oral negotiations only to the extent of ascertaining what these words and letters (ambiguous and unintelligible in themselves) really mean.” See State Historical Asso. v. Silverman, 6 Ga. App. 560 (65 S. E. 293); Ford v. Lawson, 133 Ga. 237 (1 a) (65 S. E. 444); Barrie v. Miller, 104 Ga. 312 (30 S. E. 840, 69 Am. St. R. 171). In Roébling’s Sons Co. v. Southern Tower Co., 142 Ga. 482 (83 S. E. 138, L. R. A. 1915B, 900), the Supreme Court quoted with approval the following from Carleton v. Lombard, Ayres & Co., 149 N. Y. 137 (43 N. E. 422): “The plaintiffs were entitled to something more than the mere semblance or shadow of the thing designated in the contract. They were entitled to the thing itself, with all the essential qualities that rendered it valuable as an article of commerce, and free from such latent defects as would render it unmerchantable. ... It frequently happens, in large transactions, that the article which is the subject of the contract is described by some vague generic word, which, taken strictly and liter all j, may be satisfied by a worthless or defective article. In such cases the words may mean more than their bare definition or literal meaning would imply, and impose upon the seller an obligation to furnish, not only the thing mentioned in the contract, but a merchantable article of that name.” Judgment reversed. Broyles, C. J., and Luke, J., concur.