Will M. Kinnard Co. v. Cutter Tower Co.

Morton, J. We are unable fairly to construe, as a condition precedent to the taking effect of the contract, the talk between the plaintiff’s agent and the defendant’s president. The contract purports on its face to contain the entire agreement between the parties, and to be an absolute one. The evidence offered tended in effect to show that, if the defendant’s president found, on trying the article, that it would not go with their account-book, then the defendant was not to be liable on the contract. Assuming that the talk was not seller’s talk, such an arrangement was executory in its character, and constituted a part of the agreement as made, and should have been embraced in the written contract. To admit evidence of it now would be to vary essentially by oral testimony the written contract. Fitz v. Comey, 118 Mass. 100. Black v. Bachelder, 120 Mass. 171. Lilienthal v. Suffolk Brewing Co. 154 Mass. 185, 188. Exceptions overruled.