Lee v. Pauly Motor Truck Co. , 1922 Wisc. LEXIS 85 ( 1922 )

Owen, J.

We are unable to discover the legal principle upon which the judgment may be sustained. The cause of action set forth in the complaint is based upon fraudulent representations made by the defendant to induce the plaintiffs to enter into the contract of purchase. The court specifically found that “the defendant made no fraudulent representations of fact to the plaintiffs to induce the sale of said truck.” In- view of this finding, which w;e find to be well supported by the evidence, the cause of. action se.t forth in the complaint falls.

The trial court evidently bottomed the judgment on a breach of warranty. While the cause of action set forth in the complaint is not predicated on a breach of warranty, the court might have considered the pleadings amended to correspond with the proof if there was in fact a breach of warranty. But, as appears from the statement of facts, the only warranty contained in the written order or contract of purchase was the usual manufacturer’s warranty from defects in material and workmanship under normal use and service, coupled with an agreement limiting its liability to a replacement of defective parts if they should be returned to the, manufacturer of the truck within ninety days after its delivery with transportation charges paid. A breach of this warranty will not support the judgment.

The court found that “the said truck contained on its engine a further warranty that it would with proper handling and care draw a five-ton load on the level at the rate of ten miles per hour, and it was understood by both parties that this warranty should and did inhere in their contract.” It was evidently a breach of this warranty that the court considered a sufficient basis for the judgment. However, this was not the warranty of the defendant. It was the warranty of the manufacturer. The contract between the plaintiffs and defendant was in writing. It is not ambiguous, and must be held to express the entire contract between plaintiffs and defendant. Upon familiar principles, parol testimony was not admissible for the purpose of changing that contract. Fox v. Boldt, 172 Wis. 333, 178 N. W. 467, 179 N. W. 1. The court found that “it was understood by both parties that this warranty should and did inhere in their contract.” This conclusion cannot be deduced from a consideration of the contract. It could be reached only by resort to parol testimony. If the parol testimony in the case justifies the conclusion reached by the trial judge, it was not properly in the case for the purpose of modifying the written contract between the parties. It was in the case only for the purpose of proving false and fraudulent representations made to induce the execution of the contract of purchase by the plaintiffs, and the court found no such fraudulent representations were.made. To' say that this warranty inhered in the contract between the parties to this action amounts to a modification of the written contract by parol testimony, which cannot be permitted. Whatever liability this warranty found upon the engine of the truck may impose upon the manufacturer, no obligations by reason thereof can be imposed upon the defendant. Furthermore, counsel for plaintiffs expressly stated upon the trial that plaintiffs did not rely upon this warranty. When defendant’s attorney was examining one of the plaintiffs concerning his knowledge that the warranty on the engine was the warranty of the factory, plaintiffs’ counsel said: “He isn’t relying upon that warranty. He has answered your question about speed. I object to that as incompetent.” This indicates that the warranty on the engine was never considered by the plaintiffs as a part of their contract of purchase.

It is to be noted that the court found as a conclusion- of law that “the plaintiffs are entitled to- recover damages herein both'for breach of said warranties and for defendant’s failure to use ordinary cafe and skill in overhauling said truck and making repairs thereon.” The question whether the defendant used ordinary care and skill in overhauling said truck and making repairs thereon was an issue that was neither tendered by the pleadings nor litigated on the trial. While the court might have believed from the evidence that proper care and skill was not exercised in the matter of making repairs upon the truck, a different conclusion might have been compelled if that question had been litigated and the appellant apprised of the fact that it was being urged as a ground of liability. At any rate, it m&y be doubted that the damages resulting from a negligent repair of the truck would amount to anything like $2,000.

It will thus be seen that the judgment cannot rest on fraudulent representations, because the court found that no fraudulent representations were made. It cannot rest upon a breach of warranty, because no breach of warranty made by the defendant was proved. It cannot rest upon a negligent repair of the truck, because that issue was not tendered nor litigated.

The conclusion reached makes it unnecessary to - treat numerous other questions raised in the brief of appellant, not the least of which is the measure of damages which the court applied to the situation.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing plaintiffs’ complaint.