Rowell v. Oleson

Gilfillan, C. J. It was error in the court below to admit in evidence the warranty signed “S. E. Eord.” That Warranty was immaterial, and could tend but to confuse and mislead the jury, unless it was the contract of the plaintiffs. There was no attempt to show it [290] to be their contract except by parol. That was incompetent. Where by its terms a contract is the contract of A, to show that it is the contract of B will vary or contradict its terms, as much as will evidence to change any other provision in it. Although the authorities are not in harmony on the point, the weight of them is to the effect that it cannot be done by parol. Ewell’s Evans on Agency, 248, [177] and note. A departure to some extent from this rule was established in this state by the cases of Pratt v. Beaupre, 13 Minn. 177, (187,) and Bingham v. Stewart, 14 Minn. 153, (214;) followed by Deering v. Thom, 29 Minn. 120, in which the court acted upon the proposition that when words (such as “agent,” “trustee,” or the like) which may be either descriptive of the person or indicative of ;the character in which he contracts are affixed to the name of the contracting party, they are prima facie descriptive only, but it may be shown by extrinsic evidence that they were used to determine the character in which the party contracts. The same proposition is stated in 1 Parsons on Contracts, 54, that it may be determined “in each instance, and with whatever technical inaccuracy the signature is made, from the facts and the evidence, that a party is an agent or a principal in accordance with the intention of the parties to the contract, if the words are sufficient to bear the construction.” In other words, when, upon the face of the contract, it is doubtful with what purpose the terms “agent,” “trustee,” or the like were used, it may be shown by parol. The cases we have referred to go as far as is safe in that direction. Upon the other warranty (that of the plaintiffs) the evidence fails to make out any counterclaim. That the parties to such a warranty may agree on a remedy for a breach, and make it exclusive, is not to be doubted. They did so in this warranty: “If said machine will not bear the above warranty, it is to be returned, after a trial of two weeks, to the place of delivery, and another substituted that will answer such warranty, or the money and notes immediately refunded.” The language of this does not give the purchaser any option. It is imperative that the machine “is to be returned after a trial of two weeks;” and then the vendor was to have the right to replace it with another, or to refund the money and notes immediately, i. e., to re [291] ■seincl the contract. No proof was made of any offer or attempt to return the machine. Order reversed.