Bent v. Furnald , 1911 Ill. App. LEXIS 1020 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

The written contract between the parties was apparently prepared by plaintiff in error, and was evi-, dently intended to prevent the purchaser from setting up any claim in opposition to its express terms. It is strongly urged that, in admitting testimony about any preliminary conversation or bargaining, the court violated the long established rule that parol testimony cannot be admitted in evidence to vary the terms of a written contract. Plaintiff in error also contends that, even if evidence upon that point were admissible, yet, by its strong preponderance in favor of the plaintiff in error it shows there was no imposition or fraud practiced.

The important question to be decided is whether the evidence is admissible. If not, then clearly the judgment was wrong. Would plaintiff have bought the piano at all, except that it was represented to her as a new one, and her reliance upon that representation? According to the testimony, she would not. While she was allowed to inspect it, it is improbable that she could have told by a most careful inspection whether or not it was new. The newness or age of an article may be a very important factor in its sale, entirely aside from its actual value for service. Whether an article be new or second-hand as a matter of sentiment alone, and entirely apart from its intrinsic value, may absolutely determine the question as to whether the proposed purchaser would wish it at any price.

The general rule is, of course, that parol testimony is not admissible to vary the terms of a written instrument ; but where, as in this case, it is charged that the representations it made, establish fraud, it is otherwise. Therefore, in this case, we think that evidence tending to establish a fraudulent representation that the piano was new, when in fact it was second-hand, is admissible, notwithstanding the written contract, and if such representations were made, they would entitle the purchaser to rescind. Williston on Sales, sec. 215.

If the' instructions complained of were conflicting and erroneous, objection should have been made at the time and before the jury retired, in order to give the judge an opportunity to correct them, if he so desired. It is too late to urge their correctness here.

As to the letters of defendant in error, written to plaintiff in error after the date of the contract, which were admitted in evidence over objection, they are essentially cumulative, and we do not think their admission constituted reversible error.

Affirmed.