Tainter v. Wentworth

Peabody, J.

These were actions brought at different times to recover partial payments on a promissory note as they became due.

The consideration of the note was a Sterling piano and bench, valued at $500, conditionally sold by the payee to the maker of the note.

The terms of the sale are incorporated in the note.

The defendant, in each case, pleaded the general issue with a brief statement alleging an express warranty of the quality of the piano; also in set-off a demand for sums of money previously paid on the note by the defendant, amounting in the aggregate to $100.00.

The three suits were tried together. In the first the jury rendered a verdict for the defendant on the claim in set-off. In each of the others the verdict was for the defendant.

The plaintiff introduced in evidence the note declared on, with endorsements thereon, and the written agreement of the defendant relating to the conditional sale.

The defendant offered evidence in support of the various allegations in his brief statement, which was admitted against the objection of the plaintiff.

The case is before the Law Court on the plaintiff’s exceptions to the ruling of the presiding Justice. The plaintiff relies, in support of his exceptions, upon the well established doctrine that oral testimony is not admissible to vary the terms of a written agreement. Neal v. Flint, 88 Maine, 72; Am. Gas & Ventilating Machine Co. v. Wood, 90 Maine, 516. The written agreement referred to, executed at the time the note was signed, related solely to certain conditions of the sale of the piano and bench. The oral testimony, which is the subject of the exceptions, does not relate to the terms of the sale, but tends to prove an express warranty of the quality of the musical instrument which was the consideration of the note as an inducement to the defendant for making the purchase.

The alleged warranty was an independent agreement on the part of the payee of the note, and its breach is available to the promissor in defense of the actions on the note. Herbert v. Ford, 29 Maine, 546; Chaplin v. Gerald, 104 Maine, 193. He could elect either to keep the property and prove in defense the difference between its value as represented and its actual value as a partial failure of the consideration of the note, or rescind the sale by returning the property and claim in defense of the actions an entire failure of consideration; also he had the right, in order to avoid circuity of the action, to file in set-off the payments previously made by him. Harrington v. Stratton, 22 Pick. 510; Hathorn v. Wheelwright, 99 Maine, 351; Pratt v. Johnson, 100 Maine, 443.

Oral evidence of the warranty, alleged in the defendant’s brief statement, did not vary the contract signed by the defendant and was admissible to prove failure of the consideration of the note.

Exceptions overruled.