George J. Birkel Co. v. Curtet

[392]

'JAMES, J.

Appeal from a judgment entered in favor of plaintiff and against the appellant Curtet. Plaintiff sued to recover a sum of money alleged in its complaint to be a balance due on a contract for the sale of a musical instrument. The contract was expressed in writing, the main portions of which set forth the terms of sale and a description of the instrument. Attached to this contract, and as a separate paragraph thereof, was the following: “I have read the foregoing contract and fully understand that George J. Birkel Company, or its assigns, will not be bound by any representation or agreement other than appears herein.” The signatures of appellant and the other defendant were attached both to this paragraph and to the main contract. Execution of the contract was admitted, the appellant resting his defense upon two grounds, to wit, first, that there was an antecedent warranty as to the condition of the instrument sold and as to the manner in which it would

operate;

second, that the consent of the defendants to the execution of the contract was induced by representations made by plaintiff’s agent that the instrument would produce satisfactory music and was in good condition of repair. The facts constituting the alleged warranty and those relied upon to sustain the defense of fraud are the same. It was further alleged in the answer that in November, 1914, which was more than one year after the making of the contract and the delivery of the instrument to the defendants, defendants rescinded the contract on the alleged ground of fraud, by restoring the instrument to the plaintiff and giving notice of rescission. As excusing the delay in making the alleged rescission, it was further alleged that defendants had seasonably notified the plaintiff of the failure of the instrument to operate in the manner as represented and warranted, and that the plaintiff undertook to repair the same and assured the defendants that the defects could be remedied. The case came on for trial, whereupon the plaintiff made proof of the condition of the account which it held against the defendants and the amount due thereon, and rested. Appellant then offered evidence to sustain the defenses of alleged warranty and fraud; whereupon the plaintiff objected to any such evidence being received, upon the ground that the contract had been reduced to writing and was presumed to contain all the terms agreed upon. This objection was sustained, as was objection also to the testimony