Cooper v. Cleghorn

Cole, J. No principle of law is better settled than that a written contract cannot be varied or controlled by parol agreements or understandings between the parties made previously to or simultaneously with the execution of' the written contract. “ When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend, in many instances, to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.” 1 Greenl. Ev., § 275. It is necessary to do little more than call attention to this elementary rule of evidence to dispose of some of the exceptions relied on by the learned counsel for the defendants for a reversal of the judgment. The circuit court found, as a fact in the case, that the written agreement and written specifications constituted the only contract entered into between the parties. We do not understand that the finding on this point is excepted to, or seriously — 121 — questioned. ¥e must therefore determine the rights and obligations of the parties by the written-contract, which is not of doubtful or uncertain import._ The plaintiffs claim a mechanic’s lien on the grist mill and warehouse for the amount due them on the contract for the materials and machinery furnished and put into these buildings. It is objected that they are not entitled to such lien because the machinery was not so erected or attached to the buildings as to become fixtures. That all the machinery furnished, except the corn-sheller, has been substantially and permanently attached to the lands and buildings, cannot, in view of the testimony, well be denied. This machinery consisted principally of a stationary steam engine, boiler and fixtures, millstones, and such other machinery as was necessary for the complete equipment and operation of a steam grist mill. All except one article has been so annexed to the buildings that it cannot be removed without material injury to the realty. The fact of the actual physical annexation of the property to the mill, which is a building set in an excavation of some six feet, on a heavy stone foundation, is indisputable. The machinery has surely lost its character as chattel property, unless the clause in the contract which provides that the title, ownership and right of possession of the machinery shall remain in the plaintiffs until the cash payments stipulated for were made, prevents it from becoming fixtures. The counsel for the defendants contends that this clause does have that effect; that though all the machinery has, in fact, through the agency of the defendants, become permanently annexed to the freehold, still it is not tobe treated as a part of the realty, because the title was to remain in the plaintiffs, which must defeat the lien. "We do not think any such effect should be given the clause in question. The provision was, manifestly, inserted in the contract for the benefit of the plaintiffs; was intended to secure promptness in making the cash payments; and it ought not to be construed as — 122 — abridging tbe rights of the plaintiffs, or depriving them of their lien. They do not claim the right to remove the property, which has become affixed to the freehold pursuant to the intention of the parties when the contract was entered into, and with the active cooperation of the defendants. The plaintiffs treat the title as having vested in the defendants by its annexation to the realty; and it surely does not lie in the mouths of the defendants, under the circumstances, to say that the property has not become a fixture. The equity and justice of this view are too obvious to require further illustration. It is true, the corn-sheller has not been so attached to the other machinery and building that it cannot be removed; but it was intended to be permanently attached, and would have been but for the neglect of the defendants. There is, therefore, no hardship in this case in treating it as a part of the machinery actually fastened to the freehold, inasmuch as it was furnished and designed to be used in connection with the warehouse. If the defendants could have fixed upon the location of the sheller, it probably would have been attached to the other machinery in the fall of 1875. We are disposed to regard the contract as a sale of the machinery, and that the reservation of the title until the cash payments were made did not have the effect of changing its character to a mere agreement to sell, as contended for by defendants’ counsel. We now reach the inquiry: Did the plaintiffs substantially keep and perform the contract on their part? The circuit court found, upon the evidence, that they did, except in certain particulars mentioned. Instead of a boiler with sixty-six flues, as agreed and stipulated for, they furnished one with sixty-four flues only. But the court finds, and such is the clear weight of the testimony, that the defendants, with full knowledge of the difference, accepted the boiler furnished, without objection, as a compliance with the contract. Any objection that the plaintiffs did not perform their agreement — 123 — in respect to the boiler, was waived. The same remark applies to tbe separator, about wbicb there was some objection made on the argument. A No. 2 Barnard separator was furnished instead of a No. 3, stipulated for in the contract. The one furnished was accepted without objection. It is true, the separator furnished would not separate oats from wheat, nor do the work which the defendants supposed it would do when the contract was made, and they exchanged it for another machine. But that the separator furnished was what was known in the market as the Barnard warehouse separator, and had 'the capacity stipulated for in the contract, is a fact abundantly established by the testimony. The court further found that the defendants accepted, without objection, as a compliance with the contract, a damsel and shoe and three silent feeders instead of four feeders; one large purifier instead of two mid-dlings purifiers; a brass casing of the cylinders of the engine instead of a black walnut casing; and these findings are fully warranted by the weight of evidence. By the contract plaintiffs agreed to furnish “ four runs best quality of four-foot old-stock French burr millstones, faced and furrowed.” Such stones were actually furnished, but the defendants sought to show by parol that, from conversation with one of the plaintiffs prior to the execution of the contract, they were led to suppose that stones which were “ faced and furrowed” would be in a condition for immediate use — that is to say, would be dressed; whereas it was necessary to expend §500 in rendering them fit to use. It clearly appeared that the words “ faced and furrowed,” among millers, did not imply that the stones would be dressed and in a condition to use. It is evident that the defendants sought to add to and vary the written contract by showing previous negotiations and understanding of the parties as to the meaning of the wordsfaced and furrowed.” This evidence was inadmissible ¡under the rule referred to at the commencement of this opinion. The defendants did not allege a mistake in the con — 124 — tract’ and seek its reformation. They attempted to add to it by showing that they supposed the stones were to be dressed. It is plain that they could not do this. A fortiori, any parol evidence offered to show that the plaintiffs agreed to furnish a cob-carrier was plainly incompetent. There was nothing in the written contract about a cob-carrier. It is further insisted that among the machinery which was to be furnished by the plaintiffs were “ six bolting reels,” which were not provided by them, but the frames were made at the mill by defendants. It is said that the defendants should be allowed the expense of making these frames. The bolting-reel frames were a part of the carpenter and joiner work, which the plaintiffs did not undertake to do. Certain it is that in the specifications six bolting reels are mentioned; but from the connection we are satisfied that the words are used only for the purpose of fixing the amount of bolting cloth of Dufour & Co.’s best brand, and of the iron work, the plaintiffs agreed to furnish. The meaning of the specifications is, that there was to be enough of the things designated under the general description to furnish among other things six bolting reels. This is all we think the specifications amount to on this point. In some other respects the defendants claim that there were defects in the machinery provided, or in the work done under the superintendence of the mill-wright furnished by plaintiffs to see to the erection of the machinery in the mill. By the contract the plaintiffs agreed to furnish a competent millwright to superintend the erection of the machinery, work and mill; the defendants agreeing to pay his traveling and boarding expenses, and not to exceed $5 a day for his services. It is very clear that the mill-wright furnished was a perfectly competent one, and if he made any serious mistakes in superintending the work, it is doubtful if the plaintiffs would be held responsible for them. In superintending the work he might be deemed the agent and employee of the defendants. — 125 — See The Monitor Iron Works Co. v. Ketchum, 44 Wis., 126; S. C., 47 Wis., 177. But, however that may be, we are satisfied from tbe evidence that the mill-wright made no serious mistakes in superintending the work. And, on the whole record, we agree with the court below in the conclusion that the testimony shows a substantial performance of the contract on the part of the plaintiffs. Besides, it must be borne in mind that, by the terms of the contract, it was expressly provided that in case of any defects in the material or workmanship of the machinery the defendants were required to give the plaintiffs reasonable notice thereof, and afford them an opportunity to repair the defect. The letters of the defendants furnish most conclusive proof that no notice of any kind was given of any defect or failure of the machinery to perform to their satisfaction, except that the warehouse separator would not separate oats from wheat, and that there was no cob-carrier with the sheller. But these matters complained of did not show any failure to perform. It follows from these views that the judgment of the circuit court must be affirmed. By the Gov/rt. — Judgment affirmed.