Louis DeJonge & Co. v. Printz , 96 N.Y.S. 750 ( 1905 )

Scott, J.

This action is for the agreed price of an embossing calendar machine sold and delivered to defendants by plaintiff. The action rests upon a written paper denominated on its face an “ order ”. reading as follows:

“ Order — Nov. 29, ’04.

“ One Krause embossing calendar

E. A. I.

23 § length of roller.

Steel roller unengraved $475.

E. O. B. ¡New York set up in factory.”

This was signed by the defendants only. Its receipt was acknowledged by plaintiff, who promised to give it prompt attention. The machine was to be manufactured abroad and, after some months, was delivered to defendants and set up in their factory. The answer alleged by way of defense that, at the time the order for the machine was given, the plaintiff represented, warranted and guaranteed to defendants that the machine contracted for would be capable of doing certain work in a good, workmanlike, sufficient and satisfactory manner; and that defendants relied upon such warranty and representation in ordering the machine. They further allege that the machine as delivered and set up was not, in all its parts, constructed and set up in a good, substantial and -workmanlike manner, was not in good working order, is wholly defective, will not operate, and will not do the work for which it was constructed and purchased; that the said machine does not work properly and, by reason of its defective construction, the work produced by it is of inferior quality and unmarketable, and the said machine is totally useless. Upon the trial, the defendants offered evidence tending to show the warranty alleged and the breach thereof, all of which was excluded by the justice upon the ground that, if received, it would tend to contradict or vary the terms of the written agreement between the parties. The paper relied upon by plaintiff is denominated upon its face as an “ order,” is not signed by plaintiff and does not purport to contain the whole agreement between the parties. It has been held in numerous cases that an order similar to this did not purport to express the whole contract, and that parol evidence might be received to supplement it. Chapin v. Dobson, 78 N. Y. 74; Brigg v. Hilton, 99 id. 517. And, even if the memorandum or order might be construed as expressing the whole contract of sale, still it was competent to prove an independent, collateral agreement of warranty, constituting no part of the contract of sale, properly speaking. Chapin v. Dobson, supra; Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138. In either aspect of the case it was competent for defendants to show, if they could, a warranty and its breach, and the refusal .to permit them to do so constituted error.

Bisohoff and MacLean, JJ., concur.

Judgment reversed and new trial granted, with costs to appellants to abide event.