Hanrahan-Wilcox Corp. v. Jenison MacHinery Co.

GRAY, J.,

pro tem.

Before the commencement of this action the parties had executed a written agreement by the terms of which plaintiff rented from defendant a road grader for a minimum period of 6% months at a monthly rental of $275. Defendant had delivered the road grader to plaintiff and the latter, dissatisfied with its performance after a 90-day trial, had returned it to defendant. Defendant had demanded and plaintiff had refused payment of the rent. Thereupon, plaintiff filed a complaint, alleging as succinctly stated that, contemporaneously with its execution, the parties had orally agreed that the written agreement was not to be effective unless and until plaintiff was satisfied, after trial, with the performance of the road grader and seeking a declaration that the written agreement, being subject to such contingency, never became effective because of its nonfulfillment.

At the trial the president and vice-president of plaintiff each testified that at. the execution of the written agreement defendant's president had represented to them that the road

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grader could perform the work, which they had described and had agreed that if the road grader did not perform such work satisfactorily, plaintiff was not to be obligated under the written agreement. Defendant objected that such testimony was inadmissibe because it varied the terms of the written agreement. The court reserved its ruling on the objection and admitted the testimony subject to a motion to strike. Upon the close of plaintiff’s case, defendant moved to strike out this testimony and also for a nonsuit upon the grounds of the previous objection. The court neglected to rule upon the motion to strike but granted the nonsuit. Judgment was rendered in favor of defendant for rent in a stipulated amount. Plaintiff appeals, claiming that the nonsuit was erroneously granted and that the judgment improperly omitted conditions of the stipulation.

In support of the order of nonsuit, defendant argues that, in passing upon its motion, the court properly ignored this testimony, as violative of the parol evidence rule, and that therefore, there was no evidence to prove plaintiff’s cause of action. Plaintiff, first, replies that the nonsuit cannot be so defended as this reason was neither urged by defendant in its motion nor stated by the court in its oral ruling. The factual basis of the reply does not coincide with the record, but, even if it did, its legal premise is wrong. The correct rule is that a nonsuit will be sustained, if it can be justified on any ground, whether or not such ground is stated in the motion or ruling.