D. M. Osborne & Co. v. Walley , 8 Pa. Super. 193 ( 1898 )

Opinion by

Porter, J.,

The first eight assignments of error go to the admission of parol testimony to vary the terms of what is claimed to be a written contract for the sale of a reaper. This alleged contract was a form prepared by the plaintiffs and entitled an “ Order and Warranty.” It contains first a request to the plaintiffs’ own agent “ to furnish a copy of this order to the purchaser which will avoid any misunderstanding at the time of settlement, or if the machine should prove defective or imperfect the purchaser will be fully protected by the warranty printed on the back.” Then follows the order addressed to the agent of the plaintiffs signed by the defendants to ship the reaper and an agreement to pay for it in a specified manner.

On the back of the document is the so-called warranty, which was not signed by the plaintiffs’ agent, although before the copies were produced at the trial the agent on the stand insisted that he had signed one of them. There is nothing in the order signed by the defendants which refers to or incorporates the warranty. The plaintiffs contend that the order and warranty contain the whole contract, and being in writing oral evidence was improperly admitted to vary its terms.

The defendants were permitted to prove that immediately before the order was signed, Daniel Maloney (recited in the ■ order to be the agent of the plaintiff company, and to whom the order is addressed), in the presence of another agent of the plaintiff company, said, referring to the reaper: “We guarantee it to give satisfaction in every respect.” This was testified to specifically by one of the defendants and Maloney himself testifies as follows: “ Q. Did not John Walley there in that conversation with you say, ‘Now Dan, supposing it don’t work, -and is not satisfactory what will we do with it?’ and did you not say: ‘ Throw it in the fence corner, I don’t want to sell ■ anything to my neighbor that is not satisfactory.’ A. I did perhaps say that. Q. That was in the presence of Mr. Bath ? A. We were all there together I believe, the four of us were sitting under a shade tree. Q. This talk was before the order was signed ? A. Yes, just before the order was signed. Q. And then didn’t John Walley say to you this : ‘Well Dan, I have confidence in you and I will order this machine.’ A. He might have said that, I won’t say the gentleman didn’t because I dis-recollect. He might have said it.” Mr. Bath the other agent of the plaintiffs present at the time the order was given does not deny that this conversation took place.

Even if it be assumed that the paper writing did contain the contract between the parties, the testimony above quoted, with other testimony in the cause, indicates that the representations made by the plaintiffs’ agent, in whom the defendants had personal confidence, were the inducement to the defendants to sign the order for the machine, and the evidence was for that reason admissible.

“ That a written agreement may be modified, explained, reformed or altogether set aside by parol evidence of an oral promise or undertaking material to the subject-matter of the contract made by one of the parties at the time of the execution of the writing, and which induced the other party to put his name to it, must now be regarded as a principle of law so well settled as to preclude discussion : ” Walker v. France, 112 Pa. 203. See also Shughart v. Moore, 78 Pa. 469; Campbell v. McClenachan, 6 S. & R. 171; Bown v. Morange, 108 Pa. 69.

“ This rule is put upon the ground that the attempt after-wards to take advantage of the omission from the contract of such promise, is a fraud upon the party who was induced to execute it upon such promise, and hence he will be permitted to show the truth of the matter : ” Powelton Coal Co. v. McShain, 75 Pa. 238.

We can find no error committed by the court below in admitting the testimony, and the assignments numbers one to eight inclusive are, therefore, not sustained.

It may be added that had there been no expressed guaranty by the plaintiffs it is to some extent implied in the law as held by the Supreme Court in Warder v. Blair, 4 Penny. 182, where it is said: “ The plaintiffs were not only the vendors, but they were the manufacturers of the machine sold to the defendant. Where a manufacturer of a reaper sells one to a farmer, we think it is sold and bought with the understanding that it will do the kind of work for which it was made.”

The ninth and tenth assignments are to the ruling of the court in permitting cross-examination of one of the plaintiffs’ witnesses as to a certain Mr. Deyo in order to ascertain his connection with the plaintiff company. It is true that cross-examination must be confined to matters brought out in the examination-in-chief, but the range of cross-examinations rests largely in the discretion of the trial judge, and unless that discretion has been plainly abused to the injury of the party complainant, it is not ground for reversal: Bohan v. Avoca Borough, 154 Pa. 404.

Clearly the plaintiffs suffered no. substantial injury by the cross-examination complained of. To have ruled it out would simply have entailed the recalling of the plaintiffs’ witness by the defendants, to prove Mr. Deyo’s connection with the plaintiff company. It was proven that Deyo was the canvasser for the plaintiff company and that he was sent to the defendants to make a settlement, if possible, with the defendants, for the machine. What he said to them in pursuance of the purpose for which he was sent, was competent evidence as against the plaintiff company. The ninth and tenth assignments are therefore dismissed.

The unsigned warranty on the back of the order provides that “ if on starting the machine it should in any way prove defective and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it and allow time for a person to be sent to put it in order.” The eleventh assignment sets up that the court below failed to instruct the jury that the said defendants are estopped from recovering because they “failed to give any notice until the 20th of July, 1895, which was too late.” There is nothing in this assignment, even if the unsigned warranty be regarded as a part of the contract. The evidence is that the agent of the company was present, set up the machine himself and started it, and that the defendants before the agent left, complained to him that the machine was not doing good work, indicated that it was not giving them satisfaction, and urged the agent to himself make further trial of the machine. The agent refused to remain, and left with the knowledge that the defendants claimed that the machine could not be made to do good work. The warranty does not stipulate that the notice must be in writing and the giving of the written notice subsequently was only in confirmation of what the agent of the company already knew, namely, that the defendants claimed that the machine “Did not work well.” Under these circumstances it was not necessary for the court to determine whether the time within which the notice was given was reasonable, or whether there was undue delay. Here, after the plaintiff company received the written notice, they sent an agent to make a second attempt to run the reaper. As they sent a person for the purpose it is fair to infer that they did so pursuant to notice, or if notice was not given in the precise way mentioned in the warranty, that it was waived.

We have given the testimony in this case the careful examination it demands and can find no error committed by the court below in its rulings and charge based upon the evidence submitted.

The judgment of the court below is therefore affirmed.