American Home Savings Bank Co. v. Guardian Trust Co. ( 1904 )

Opinion by

Mb. Justice Potter,

This was an action of assumpsit in which judgment was entered for want of a sufficient affidavit of defense. The appellant contends that this was error, because it had set up in the affidavit a parol contract modifying the written order upon which the goods were furnished. But this contract as alleged by the defendant does not appear to have been contemporaneous with the written order, and for that reason the learned court below was justified in ruling that it could not be permitted to vary or contradict the latter. The first written order was given to the plaintiff by the defendant, under date October 30, 1903. The affidavit of defense alleges that prior to this time, but without stating when or where, certain agreements were made, which do not appear in the written order. So long ago as Rearick v. Rearick, 15 Pa. 66, Justice Bell said (p. 72) : “-It is recognized as a settled maxim, that oral evidence of an agreement or understanding between parties to a deed or other written instrument, entertained before its execution, shall not be heard to vary or materially affect it. Accordingly, the settled rule is that, when a contract has been reduced to writing, it is understood as expressing the final conclusions of the contracting parties, and fully accepted as merging all prior negotiations and understandings, whether agreeing or (in) consistent with it.”

In Hatfield v. Thomas Iron Co., 208 Pa. 478, the facts are quite like those of the present case. There the written contract was a sale memorandum sent by the plaintiffs to defendants and accepted by them. The language of the court there used (p. 484) is appropriate here. We said: “ The court below very properly held that the sales memorandum was the contract between the parties by which the plaintiffs agreed to sell and deliver the coke to the defendant company, and that the parol testimony offered by the defendant was not admissible to contradict the written agreement. The defendant did not propose to show a parol contemporaneous agreement inducing the execution of the written contract between the parties, nor that the execution of the agreement was procured by fraud, accident or mistake. The offer was simply to contradict the written agreement by showing by parol evidence certain negotiations prior to June 10, 1899, the date of the sales memorandum,” etc.

In the case now before us, the first order given by the defendant was for 500 clock banks, and 400 of these were shipped prior to January 9, 1904, at which date the defendant gave a second order for 2,000 more of the clock banks. It directed that they be shipped at the earliest convenience of the plaintiff, 500 of them the following week, and all within sixty days from date. It appears that in so far at least as the first order was concerned, all of the banks were delivered and accepted, and payment made upon account thereof. An inspection would certainly have disclosed the defects, had they existed, of which complaint is now made. The second order was for a known, described and definite article. And where such an article is supplied, there is not under the authorities any warranty that it shall answer the particular purpose intended by the buyer. See Jarecki Mfg. Co. v. Kerr, 165 Pa. 529 ; Seitz v. Refrigerating Machine Co., 141 U. S. 510. This latter case has been approved and followed in Pullman Palace Car v. Street Ry. Co., 157 U. S. 94.

It is true that if a thing be ordered of the manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose. But this principle is limited to cases where a thing is ordered for a special purpose, and must not be applied to those where a special thing is ordered, although this be intended for a special purpose: Port Carbon Iron Co. v. Groves, 68 Pa. 149. We do not see in the allegations of the affidavit of defense, sufficient to support the theory, that the representations made by the agent of the plaintiff amounted to a warranty. But in any event the defendant has not rescinded the contract. It received and has retained and used the clock banks, so that if entitled to damages, the measure would be the difference between the value as warranted, and the real value of the goods as delivered: Himes v. Kiehl, 154 Pa. 190; Seigworth v. Leffel, 76 Pa. 476.

But upon the broad ground, that it is sought to vary a written contract by parol representations previously made by one of the parties, we think the affidavit was insufficient to prevent judgment. As was said by our Brother Brown, in Krueger v. Nichola, 205 Pa. 38 : “ To contradict or vary the terms of a written contract by an oral, contemporaneous agreement between the parties, there must be allegation as well as proof, not only of it, but of its omission through fraud, accident or mistake, from the writing. This has been ruled so frequently that reference is hardly needed to one or two of the many authorities on the subject; ” citing Wodock v. Robinson, 148 Pa. 503 and Hunter v. McHose, 100 Pa. 38.

The affidavit of defense contains no allegation that by means of fraud or mistake, the real agreement of the parties was not expressed in the written orders for the goods.

The assignments of error are overruled, and the judgment is affirmed.