Harrison v. McCormick
Before: Haven
Synopsis
Sale — Sample — Written Contract — Parol Evidence. — Where a contract for the sale of merchandise is in writing, and nothing in the written contract indicates that a sample was used or referred to, parol evidence is inadmissible to show a sale by sample.
• Written Contract — Completeness — Question of Law.— The question as to whether a writing is upon its face a complete expression of the agreement of the parties is one of law.
Ed.— Presumption — Parol Evidence — Adding Terms.—If a writing contains such language as imports a complete legal obligation, it is to he presumed that the parties have introduced into it every material item and term; and parol evidence is inadmissible to add another term to the agreement, although the writing contains nothing on the particular term to which the parol evidence is directed.
Id.—Sale of Coal—Abbreviation “Etc.” — Surplusage. — The fact that in a written agreement for the sale of coal, the abbreviation “ etc.” was used in the sentences, “Ship to be named, original cost, etc.”; “Tobe paid on receipt of bills of lading, etc.,” does not render the writing incomplete as a contract of sale, nor justify the conclusion that it was not intended by the parties to contain all the terms of the contract; but the abbreviation, being meaningless in the connection used, and not affecting the legal construction of the agreement, will be regarded as surplusage.
Id. — Fraud — Pleading — Parol Evidence. — Where there is no allegation in the answer that the defendants were induced to enter into the contract by fraudulent representations, or of a mistake in reducing the contract to writing, parol evidence tending to show that the coal delivered was not of the kind or quality of a sample not referred to in the contract is not admissible as tending to show that the coal delivered was not of the kind or quality described in the contract.
Id.—Findings—Fulfillment of Written Contract—Sale by Sample — Parol Evidence — Prejudicial Error. — Where the court finds that the coal delivered was of the kind, variety, and class named in the contract of sale, but fails to find that it was not merchantable, nor equal in quality to that called for in the contract, the admission of parol evidence to show a sale of the coal by sample, and that the coal delivered did not correspond with such sample, is prejudicial error.
De Haven, J. The defendants had judgment in the court below, and from such judgment, and an order denying him a new trial, the plaintiff appeals.
The action is for a balance alleged to be due plaintiff on account of the sale of fifty tons of coal, sold under-the-name of Montana Lump Lehigh Hand-picked Coal.
The answer sets up, among other defenses, that the coal was sold by sample, and not by name, and that the coal delivered did not correspond with the sample.
The plaintiff proved that an agreement for the sale of the coal was reduced to writing and executed in duplicate, and that the one retained by him was lost. He then proved the contents of this written agreement by a witness who refreshed his memory from a letter-press copy of the written portion of said agreement, and a blank memorandum of contract similar to that upon which the agreement was written.
The contract as thus proven is as follows:—
“San Feancisoo, January 12, 1882. “Messrs. McCormick & Lewis. Ordered from J. W. Harrison fifty tons Montana Lode Lump Lehigh Hand[329]picked Coal, early lading in New York. Ship to be named, original cost, etc. To be paid on receipt of bills of lading, etc., and the freight to be paid on receipt of coal here, at $13.50 per ton per 2,240 pounds, gold coin, payable as above, delivered from ship’s side when landed. Any shortage in excess of two per cent to be paid by the seller.”
The record does not disclose any conflict in the evidence as to the fact that there was a written agreement, or that its written terms were as above set forth. The defendants, however, were permitted to show by parol evidence that the contract was for coal of the same kind and quality as the defendants had previously bought from plaintiff, and which they were then using in their foundry, and that the coal delivered was not of the kind or quality thus referred to as a sample; and the question presented by this appeal is, whether this parol evidence was properly admitted.
1. We do not see how the admission of this evidence can he sustained. Its effect was to show that coal was sold by sample, and thereby to import into the contract a warranty that the coal sold was to be equal to the sample. When the contract is in writing, and nothing in the written contract indicates that a sample was used or referred to, parol evidence cannot be allowed to show a sale by sample. (Tiedeman on Sales, sec. 188; Wiener v. Whipple, 53 Wis. 298; 40 Am. Rep. 775; Thompson v. Libby, 34 Minn. 374.)
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