Jones v. Keefe

Siebecicee, J. It is contended that the court erred in excluding evidence of the representations made by the plaintiffs respecting the age of the car and its fitness for use as an automobile. The purpose of the evidence was to show that the car, as to its condition and fitness for use, did not comply with the representations the plaintiffs made in this respect when the sale was negotiated. The parties to the written order for-the car do not dispute that it was mutually accepted by them In making the sale and purchase of the automobile. By this, writing the defendant agrees to purchase the car in question, at the agreed price of $650, and pay this sum as stipulated. The order also contains the two agreements above stated, [587] whereby the plaintiffs guaranteed the car for a period of one year and in effect stipulated that there were no verbal understandings, promises, and agreements not specified therein. It is clear from the evidence that the defendant accepted the car under this written order and that he gave his notes for the unpaid purchase price as therein specified and that the plaintiffs treated the order as the contract of sale and made delivery of the ear pursuant thereto. The allegations of the answer, by way of defense and by way of counterclaim, in effect charge the plaintiffs with a breach of the contract of sale, in that the car does not fulfil the representation that plaintiffs made respecting its age and its condition and fitness for use .as an automobile. The evidence ivhich referred to statements not embraced in the terms of the written order was properly ■excluded by the court. The terms of sale were finally reduced to writing, and this excludes evidence of oral negotiations preceding it, 'if the terms are free from ambiguity. The contract terms are plain and definite in meaning when applied to the subject of the transaction and cannot be varied or modified by oral evidence. Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641; Newell v. New Holstein C. Co. 119 Wis. 635, 97 N. W. 487. The clause of the contract that no verbal agreements were entered into not expressed in writing is expressive ■of the intent and purpose of the parties that all the terms and conditions of the sale are embraced in it. This stipulation supports the position that the negotiations were finally ■embodied in the written agreement. It is contended that the court erred in holding that the evi■dence as a matter of law did not tend to show that there was a breach of the written warranty guaranteeing this automobile for a period of one year. The court interpreted this guaranty as warranting the car when sold to be in a condition fit for use and that it would run for a year, when used by the defendant in his business, as contemplated by the parties, with proper care and use, if the plaintiffs made the necessary [588] repairs incident to such use. .We find the record fully sustains the trial judge in holding that the evidence will not sustain a finding that the plaintiffs neglected or refused to make repairs of any defects in the machine which prevented the machine from running as contemplated in the guaranty. The defendant and his daughter make the naked statement that, the car would not run, hut 'this is wholly overcome by their' own statements describing what use they actually made of it. Their complaint concerning the want of power is neutralized by their evidence, which shows they used it and that when they had any trouble in this respect it was remedied by the plaintiffs when brought to their attention. It is undisputed from the facts and circumstances shown that the defendant used the ear, that it did run, and was operated in his business. It also appears that the plaintiffs did not fail to make such repairs as were required of them under the written guaranty. The suggestion that defendant’s pleadings are insufficient to raise these questions because the answer does not formally demand judgment by way of counterclaim is not well founded. The allegations of the answer must he given a liberal construction, and when so construed they sufficiently allege a claim for recoupment, if the evidence had shown that defendant sustained damages by reason of a breach of the contract of sale. Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Steckbauer v. Leykom, 130 Wis. 438, 110 N. W. 217; Rib Falls L. Co. v. Lesh & M. L. Co. 144 Wis. 362, 129 N. W. 595. The action of the trial court by directing judgment for the recovery of the amount due on the note was correct because the evidence does not support the claim that plaintiffs in any way breached the contract of sale. By the Court. — The judgment appealed from is affirmed..