Warner v. Thompson

The opinion of the court was delivered by Horton, C. J.: 1- tieconstrued by court. It is alleged that the court erred in sustaining the demurrer filed by plaintiff below to the third defense set up in the answer of defendant. We think not. The order or contract provided that the defendant was to take possession of the old safe accepted in exchange from Loomis Bros., on the arrival of the new safe. The third defense interpolated in the contract, after the word “arrive,” “and acceptance.” The defendant cannot be permitted x . . to give his own construction oi the contract by adding other words. The interpretation or construction of a writing, unambiguous in its terms, is a matter of law for the court to pass upon. [30] ’ breach; re29 It is next alleged that the district court erred in sustaining [30] the exceptions filed by plaintiff below to a deposition in behalf of defendant. The deposition was that of Pliram Stockbridge, the general manager of the business of the defendant. It showed, among other' things, that on May 31, 1883, the defendant received at his office at Rochester, New York, an order for a safe from Loomis Bros., McPherson, in this state, and at the same time the order from plaintiff below for the old safe to be taken in exchange from Loomis Bros.; that the defendant sent printed notices to Loomis Bros, and plaintiff below, and that the defendant acknowledged receipt of the orders; that on Juné 21, 1883, the safe ordered by Loomis, Bros, was shipped them by the defendant in exact accordance with their agreement of June 11th, and that the defendant sent to plaintiff below a-bill for the old safe on the terms of his order, and also an order on Loomis Bros, for its delivery to him; that Loomis Bros, refused to take the new safe from the depot, or to deliver the old safe to the plaintiff, although the defendant made repeated efforts to induce them to do so. The part of the deposition that the court ruled out was as follows: “The order of said Thompson was contingent upon his taking possession of the safe as stipulated in his order, and has never been approved or accepted by the said H. H. Warner upon any other consideration; that said H. H. Warner never agreed to deliver possession of the safe to Thompson;” and also, “believing Loomis Bros, to have received their ngw safe, said Warner sent Thompson a bill for the old safe.” We perceive no material error in the rejection of this testimony. The contract is in writing, and speaks for itself; and all the testimony attempting to vary or contradict the written order or agreement was incompetent. The defendant was to deliver to Loomis Bros, a new safe, and was to cause Loomis Bros, to deliver the old one to the plaintiff, and defendant was responsible for any failure on the part of Loomis Bros, to deliver the old safe to plaintiff, whatever may have been the cause of such failure. (Thompson v. Warner, 31 Kas. 533.) If Loomis Bros, were guilty of a breach of the contract with the defendant, plaintiff below was [31] not responsible, and if tbe defendant has suffered damages on account of the action of Loomis Bros., plaintiff ought not also to suffer. The defendant was evidently bound to see that the old safe was delivered to plaintiff. If he failed so to do, he was liable for a breach of his contract, as it clearly appears from the evidence in the case that he approved the order or agreement signed by the plaintiff and dated May 26, 1883. After an examination of the record, we find that there was sufficient evidence to sustain the findings and judgment of the trial court; therefore the judgment must be affirmed.' All the Justices concurring.