Thomas v. Barnes , 156 Mass. 581 ( 1892 )

Morton, J.

A paper writing signed by the parties, and purporting to set forth their whole contract, cannot be contradicted, altered, enlarged, or diminished by proof of previous or contemporaneous conversations between the parties. Goodrich v. Longley, 4 Gray, 379. Clark v. Houghton, 12 Gray, 38. Perry v. Bigelow, 128 Mass. 129. Frost v. Brigham, 139 Mass. 43. Me Guinness v. Shannon, 154 Mass. 86. To add to it or ■ take from it by such conversations would be to contradict or alter it. In the present case it appears that the contract relied on was a bilateral executory one. Duplicate papers were prepared, apparently with the expectation that they were to be signed by both parties, and one retained by each. Only one was signed, and that was signed by Barnes alone. It was given to Thomas by Barnes, and remained in his possession, but he did not sign it. Barnes offered to show that it was agreed by the parties that this paper was only a partial memorandum, and that it did not contain all the provisions of the contract, and that, as part of the contract, Thomas orally warranted the refrigerator. The paper signed by Barnes was consistent on its face with the view that it was intended by the parties merely as specifications, and not as containing the whole contract. The conduct of Thomas in not signing it was also consistent with this view. If it was delivered by Barnes to Thomas, and assented to by the latter as containing the whole contract, then oral evidence as to previous or contemporaneous conversations would not be admissible to affect it. But whether it was so delivered to Thomas, and assented to by him, was a question of fact for the jury under suitable instructions. Wilson v. Powers, 131 Mass. 539. Bartlett v. Stanchfield, 148 Mass. 394. Sears v. Kings County Elevated Railway, 152 Mass. 151. Durkin v. Cobleigh, ante, 108. We think, therefore, that the evidence should have been admitted.

During the progress of the work a controversy arose as to the packing of the refrigerator. Barnes offered to show that Thomas then warranted the refrigerator, and that Barnes accepted the warranty. There was nothing in the specifications, or in the alleged contract, as to the packing, or relating to a warranty. The court excluded the testimony, but we think it should have been admitted. It is well settled that an executory bilateral written contract may be varied by a subsequent oral agreement between the. parties. Bartlett v. Stanchfield, supra. Stearns v. Hall, 9 Cush. 31. Courtenay v. Fuller, 65 Maine, 156. The contract, when modified by the subsequent oral agreement, is substituted for the contract as originally made, and the original consideration attaches to and supports the modified contract. Munroe v. Perkins, 9 Pick. 298. Holmes v. Doane, 9 Cush. 135. Byington v. Simpson, 134 Mass. 145. Malone v. Dougherty, 79 Penn. St. 46, 53. Courtenay v. Fuller, ubi supra. Flanders v. Fay, 40 Vt. 316. Bishop v. Busse, 69 Ill. 403. Lattimore v. Harsen, 14 Johns. 330. Goss v. Nugent, 5 B. & Ad. 58, 65. If, therefore, the paper writing had contained the whole contract as originally made, the evidence was admissible for the purpose of showing that the parties subsequently varied it. By the warranty we understand was meant that the refrigerator should be a good one, and reasonably satisfactory. Besides, the evidence offered in regard to the warranty appears to have been excluded on general grounds; otherwise, it would no doubt have appeared more specifically what the warranty was.

Exceptions sustained.