Purity Ice Co. v. Hawley Down Draft Furnace Co.

Mr. J ustice Shepard delivered the opinion of the Court: Upon a careful examination of the proceedings on the trial, which have been completely stated above, our conclusion is, that the court did not err in instructing the jury that the evidence failed to establish a legal defense. The written contract, in accordance with which the plaintiff delivered and installed the described furnace, and accessories, is plain and definite so far as it goes, and there is no claim that anything was inserted in, or omitted from, it through fraud, accident, or mistake. The evidence does not tend to show that the acceptance of the written proposition, and the signature of the defendant thereto, which formed the contract, were obtained upon the condition that the contract should not take effect until the performance of a definite precedent condition. Hence the case was not brought within the scope of decisions establishing or recognizing the doctrine that extrinsic evidence may be given to show that the contract had never gone into effect at all. Burke v. Dulaney, 153 U. S. 228, 38 L. ed. 698, 14 Sup. Ct. Rep. 816; Donaldson v. Uhlfelder, 21 App. D. C. 489. In a case relied on by both parties, where the agreement was unambiguous and definite, and there was no pretense of fraud, accident, or mistake, the Supreme Court of the United States has carefully considered the question of admissibility of parol evidence to establish a collateral agreement. Seitz v. Brewers’ Refrigerating Mach. Co. 141 U. S. 510. That was also an action upon a contract for the supply and erection of certain machinery, and the defense offered to prove that a certain capacity had been expressly represented and warranted before the execution of the contract by the defendant. This was held inadmissible. Chief Justice Fuller, who delivered [592] the opinion of the court, said: “Undoubtedly the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proved by parol, if, under the circumstances of the particular case, it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as to import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing. * * * The machine which the company sold and which Seitz bought was a No. 2 size refrigerating machine as constructed by the company, and such was the machine which was delivered, put up, and operated in the brewery. A warranty or guaranty that that machine would reduce the temperature of the brewery to 40° Fahrenheit, while in itself collateral to the sale, which would be complete without it, would be part of the description and essential to the identity of the thing sold; and to admit proof of such an engagement by parol would be to add another term to the written contract, contrary to the settled and salutary rule upon that subject. Whether the written contract fully expressed the terms of the agreement was a question for the court, and since it was in this instance complete and perfect on its face, without ambiguity, and embracing the whole subject-matter, it obviously could not be determined to be less comprehensive than it was. And this conclusion is unaffected by the fact that it did not allude to the capacity of the particular machine. To hold that mere silence opened the door to parol evidence in that regard would be to beg the whole question.” We are inclined, however, to think that the reasons given for the exclusion of the evidence of the warranty in that case do [593] not apply in this, and that the evidence offered was properly admitted at the time. There seems to be a substantial difference between the conditions disclosed in the two cases. The contract in that case was a formal, mutual agreement, made upon the •conclusion of the negotiations between the parties, into which the buyer afterwards sought to inject a special warranty. In the ■case at bar, one of the use plaintiffs, in person, solicited an order from the defendant, exhibiting to its representative a printed -circular containing certain express warranties, and concluding thus: “Should our furnaces fail to do as guaranteed, we agree to remove them and replace the former setting at our expense.” 'The printed representation of special, material advantages in the seller’s furnace, coupled with the express warranty of performance in each particular, was reasonably calculated to influence ■the buyer, and cause him to accept the proposition to deliver and install the furnace for the consideration stipulated. Nor was it unreasonable for the buyer to assume that the printed .guaranty formed an essential feature of the transaction without its express incorporation in the proposition and acceptance ■founded thereon. In accordance with the principle declared in some well-considered decisions, the final proposition relating to the delivery to be made and the consideration to be paid would seem to constitute an independent part of the contract only, the remainder •of which is found in the printed guaranty. Phelps v. Whitaker, 37 Mich. 72, 76; Ayer v. Bell Mfg. Co. 147 Mass. 46, 52, 16 N. E. 754; Red Wing Mfg. Co. v. Moe, 62 Wis. 240, 22 N. W. 414. But the question of the admission of this evidence is not necessarily involved, and need not, therefore, be expressly determined. Conceding the admissibility of the printed guaranty, “the court did not err in finally excluding all the testimony relating thereto from the consideration of the jury, because it fell •short of establishing any defense to the action. The furnace was promptly delivered and attached to the defendant’s boilers, :and was in operation at the time when the evidence was given. Considering the warranty as an express part of the contract, it [594] was not incumbent upon tbe plaintiff, as a precedent conditions of recovery thereon, to show that the furnace would answer all the requirements of the warranty. The burden, on the contrary,, was upon the defendant to show that it was incapable, under-proper management, of producing the substantial results that had been warranted. This it failed to do, and appeared, therefore, in the attitude of purchasing, receiving, and constantly using the furnace, and then resisting payment, without substantial evidence that it had failed to conform to the warranted standard. Its legal duty was to test the capacity of the furnace,, in the matter of guaranteed performance, in a fair and reasonable manner, and within a reasonable time under all the circumstances ; and, having thus demonstrated its failure, to notify the plaintiff, which, in the event of failure, had promised to remove it and replace the former setting. It appears from the testimony that the plaintiff, itself, offered! and prepared to make a test of the' capacity of the furnace in a particular manner. Without showing wherein the method of the-proposed test was an insufficient or unreasonable one, the defendant insisted upon another which it also failed to show would answer these requirements. Each party declining to adopt the-method of test suggested by the other, nothing more was done-in the matter. The plaintiff was under no obligation to make the test in order to demand payment. Its offer was voluntary. Having declined that offer, the duty of the defendant remained as above stated. The testimony given by the defendant’s employee in charge of' the furnace and boilers, respecting the general operation of the old plant and the new, was clearly insufficient, of itself, to show a breach of any warranty; and we do not understand that its: sufficiency for that particular purpose has been claimed. It follows that the judgment must be affirmed with costs. It it so ordered. Affirmed. A motion for a rehearing was overruled February 9, 1904,