Grout Bros. v. Moulton

Rowell, C. J. Assumpsit for the price of an automobile sold and delivered as part of a written contract of agency between the parties for the sale of the plaintiff’s automobiles by the defendant in the northeastern counties of this State. The cross-examination of the plaintiff’s witness, Karl Grout, as to the contents of the written contract of agency between them and St. Jock & Blodgett, was harmless, as it elicited nothing but the inability of the witness to remember anything about its contents. — 135 — The plaintiff’s letter of April 8, 1903, if immaterial, appears not to be such as to prejudice them on the question of damages, as claimed, and therefore its admission was not reversible error. Nor was it error to admit the bilateral contract executed by the plaintiffs ionly, that accompanied that letter, for taken in connection with St. Jock’s testimony, it tended to show the contents of said contract between the plaintiffs and St. Jock and Blodgett; and it was material to show what that contract was, as is shown below. No exception was taken to the admission of secondary evidence of the contents of said last-mentioned contract, but only to the admission of any evidence of its contents, because it was claimed to be immaterial what that contract was, as it appeared that nothing was ever done under it. But that contract became effective between; the parties, and was a breach by the plaintiffs of their contract with the defendant here in question, as it assigned a part of the defendant’s territory to St. Jock and Blodgett. Hence it was material to show what that contract was, and it is no answer to say that nothing was ever done under it; that objection goes to the damages, not to the right. The exception for immateriality to allowing St. Jock to testify that in the summer of 1903 the public demanded fusible plugs in steam automobiles, cannot be sustained. The evidence bore upon the value of the automobile in question, especially for demonstrating purposes wherewith to sell others, for which purpose the defendant bought it, as the plaintiffs knew. So what the plaintiffs told Blodgett at their factory in April, 1903, about the use and purpose of fusible plugs, was evidence against them of their utility and need. The testimony on the part of the defendant as to what transpired at the plaintiffs’ repository in Boston on the 20th of — 136 — March, especially when taken with what took place between the defendant and Walker the day before at the automobile show, tended to prove that Walker was the plaintiffs’ agent. That testimony was in substance this: The morning of the 20th, Walker went early to the defendant’s hotel, and took him and his friend Moore to the repository, and there introduced the defendant to Charles B. Grout, one of the plaintiffs, as a man from Vermont looking for an agency for automobiles. Grout being busy, Walker showed the defendant and Moore a number of Grout machines in the repository, called attention to their nice finish and style, their strength of build, and said they were well adapted to the defendant’s section of country. Then the defendant and Moore were taken by some one to ride in one of the cars; and on,their return, said plaintiff asked the defendant how he liked the appearance of their cars, and he said, “from what your representative [meaning Walker] has told us, and what I have seen, I think you have some very good cars:” The plaintiff said he thought they had, and pointed out their strength, and said they were better adapted to hilly country than any others, “and seemed to know about the agency business,” and “started right in to talk .about it.” Then the plaintiff, the defendant, and Walker went aside to where the cars were, and talked together a while, and then the plaintiff and the defendant, and perhaps Walker, went into the office, and the contract in question was drawn up- and executed. Then Moore, talking with the plaintiff, referred to Walker, either as agent or by name, as having done well in bringing the defendant to plaintiffs’ place, and said he thought considerable credit was due to him for it. The said plaintiff himself testified that he knew Walker as a curb broker, but never talked with.him till the week of the show, and in their Boston office it might have been, for he was hanging around — 137 — there a good deal. He could not remember what was said, except that Walker asked for catalogues, etc.; that he did most of his business with Ham, who ran the office. Neither Ham nor Walker testified. This disposes of all the exceptions based upon the claim of no evidence to prove Walker’s agency. It is said, however, that if Walker was plaintiffs’ agent, there is no evidence that his statements were within the scope of his authority. But the testimony that tended to show his agency, also tended to show, that his statements were within its scope. And those statements were a part of the res, as they related to the very contract here in question. It is not necessary that they should have been simultaneous with the conclusion of the contract, but only that they should have been made during the negotiations that led to the contract, have influenced the defendant in making it, and entered into it as a part thereof; all which the testimony tended to show. Hobart v. Young, 63 Vt. 363, 369. The contract in question required payment for the car on delivery and “satisfactory demonstration.” The plaintiffs proved what' “demonstration” means as understood in the trade. Then the defendant, as tending to show what the parties understood it to mean as used in the contract, proved, under exception, the direct oral statements of one of the plaintiffs, made at the time the contract was executed, to the effect that if the defendant had prospective customers when they sent a man to teach him how to run the car, they would show it up to them, and if he had some prospective customers up in his section, they would help him sell to them; all which, the defendant claimed, the plaintiffs had neglected and refused to do. The admission of these statements was error, unless the defendant’s claims to the contrary, or some of them, are sus — 138 — tainable; for direct oral statements of intention in respect of the subject of a written contract are admissible only when the language used is equivocal, that is, when it is equally applicable-in all its parts to more than one external object. 4 Wig. Ev. §§ 2471, 2472; Thayer’s Prelim. Treat. Ev., 444; Steph. Dig. Ev., Chase’s ed., 230, (7), 231, (8). Here the words, “satisfactory demonstration,” though their trade meaning may be uncertain on their face, are not shown by extrinsic evidence to be equivocal, and therefore the case is not within the exception to- the rule that you cannot enlarge a written contract by oral evidence. Hart v. Hammett, 18 Vt. 127, illustrates that exception. There the contract was for the sale of “winter strained lamp oil.” It was proved that these words as generally used in the oil trade applied indifferently to winter strained sperm lamp oil and to winter strained whale lamp oil, and that sperm oil was better than whale oil, which was the oil delivered. In this state of the case, oral evidence was held to be admissible to show that at the time of the execution of the contract the defendant showed to the plaintiff a sample of the oil to be delivered, and told him it was not sperm oil. New England Granite Works v. Bailey, 69 Vt. 257, is a similar case. There the contract was for a monument of “white Westerly granite.” The monument erected was of a reddish or chocolate cast. It was found that there are different varieties of Westerly granite known to the trade as white Westerly granite; some of which has a reddish or chocolate tinge when polished or hammered, and some, a grayish-white tinge. It was held permissible for the defendant to show that at the time the contract was made it was orally agreed by the parties that the latter variety should be used. — 139 — St. Martin v. Thrasher, 40 Vt. 460, is an illustration of the rule itself. There a written contract for dressing stone for a tunnel at so much a-foot provided that “all of the face of the work that shows is to be measured, and none else.” The plaintiff gave oral evidence that the words, “face of the work,” meant all the cut and dressed surface that showed, whether horizontal or perpendicular; and the defendant gave like evidence that they meant only the perpendicular fronts of the wall. Held, that the defendant could not show what was said between the parties in their oral negotiations before the execution of the contract as to how the measurement should be made and what face measurement meant. McKeough's Est. v. McKeough, 69 Vt. 41, is to the same effect. There the question was whether the whole or only a part of the testator’s premises on the west side of a certain street passed by a devise of his “home place on which I now live.” It was held to be a question of construction only, ’and not of intention, as it would have been had the language applied equally well to each of two parcels. But the defendant says that the testimony was admissible to meet the plaintiffs’ evidence of the meaning of “demonstration” as understood in the trade. 'But that evidence did not touch the matter of the oral statements objected to, and did not open the door for them. The same kind of evidence was given in St. Martin v. Thrasher, 40 Vt. 460, and yet direct statements of intention were excluded. The defendant also says that it was all a closely connected part of a conversation in which the plaintiff made an admissible declaration as to' what constitutes “satisfactory demonstration” — an admission of what he understood that expression to mean, and that therefore all he said on the subject at the time was admissible as a part of said declaration. But what — 140 — he said was not a part of said declaration, but was the declaration itself, and not admissible. It is further claimed that the statements were admissible because the document is not dispositive, but only evidentiary. But we think it dispositive. It is signed by both parties, and contains mutual promises. In it the defendant agrees to buy one automobile, and pay so much therefor on delivery and satisfactory demonstration. If he buys four more by such a time “after the one bought this day,” the plaintiffs agree to allow him so much commission on the five. It is further claimed that the statements were harmless, as the court instructed the jury to disregard them, and that the words, “satisfactory demonstration,” did not include sending a man around with the defendant to help him sell machines. But their harmlessness does not appear. The case comes clearly within the rule that error in the admission of evidence cannot be cured by instructing the jury to disregard it. State v. Meader, 54 Vt. 126. As to defendant’s testimony on re-examination, that he should not have purchased an old model machine for a demonstrating cai‘ had he known it, it is enough to say that it does not appear but it was made admissible by the cross-examination. If it was matter of law and not of fact, as claimed, whether the defendant accepted the automobile, it was harmless to submit it to the jury, for it found acceptance, as the case ■shows by necessary inference, for otherwise the verdict would not have been warranted. The plaintiffs excepted to submitting to the jury whether they personally or by their agents represented to the defendant that the car they sold him was a 1903 model, but only •on the ground that there was no evidence tending to show — 141 — such fact. Hence the other grounds now urged under that exception will not be considered. It is not claimed that there is no evidence tending to show that the plaintiffs themselves did not so represent, but only that there is none tending to show that Walker did. . But the defendant’s testimony tended to show that Walker did, in effect; for he explained to the defendant the use and necessity of a fusible plug as an equipment of a steam automobile, and represented to him that all Grout automobiles were thus equipped, and that the air pump of the plaintiffs’ machines was a much better system of generating air than the Stanley system. The plaintiffs’ 1903 cars had both of these equipments, but their 1902 cars, of which the defendant’s was one, had neither. Thus Walker’s representations amounted to saying that the defendant’s was a 1903 car. The charge on the subject of damages “as per defendant’s requests” was excepted to, but no ground stated. It was that the evidence tended to show that there was a market for Grout automobiles in certain of defendant’s territory, and that at least three might have been sold there with satisfactory demonstration. Plaintiffs claim there was no evidence warranting the charge. Defendant claims the contrary, and that the exception is too general to be available. But it would serve no useful purpose to decide the matter, it is so likely to be changed on another trial. The motion to set aside the verdict for want of evidence to sustain it was properly overruled. Reversed cmd remanded.