235 Mass. 463 | Mass. | 1920
This action is to recover on a promissory note given by the defendants to Charles H. Bowen and the plaintiff, for certain brick. The terms of sale were contained in a written contract. The defendants alleged misrepresentations of the quantity and quality of the brick by the plaintiff and Bowen, and near the close of the trial the defendants were permitted to amend their answer by alleging a breach of warranty of quality. A verdict was ordered for the plaintiff.
Bowen and Mr. Bennett owned the machinery, rails and equipment, including three hundred and twenty thousand brick designated as building or face brick, some unburned building or face
As the contract in writing contained the entire agreement of the parties, it could not be supplemented by oral evidence of a warranty. Carpenter v. Sugden, 231 Mass. 1. Glackin v. Bennett, 226 Mass. 316. Edgar v. Joseph Breck & Sons Corp. 172 Mass. 581, and North Packing & Provision Co. v. Lynch, 196 Mass. 204, are not in point. In neither of these cases was the contract of sale in writing. The agreement was oral, and the paper relied on as showing that it was in writing was merely a bill of parcels not designed to set forth all the terms of the contract. It was not a contract in writing and did not prevent the parties from showing all the terms of the bargain, including the warranty. See Glackin v. Bennett, supra.
The defendants further relied on the alleged misrepresentations of the owners concerning the quality of the brick, asserting that a large part of the brick were not suitable for building or structural purposes, and that many of the fire brick were not merchantable. During the progress of the trial and before the defendants amended their answer by alleging a breach of warranty, the defendants objected to a question asked by the plaintiff. The judge then asked the defendants’ counsel if he relied on the claim of misrepresentation, to which counsel replied, "Not as the pleadings stand now, but I want to amend the pleadings.” The judge then said that, if the defendants desired to amend by adding (referring to the amendment setting up the warranty), the question might be put. When this question was asked, the defendants, in their answer, denied that they had signed the note, and alleged that it was without consideration and that they were induced to sign the note by the misrepresentations of
Furthermore, there was no evidence of any fraudulent misrepresentations made by Bowen or by the plaintiff upon which the defendants relied. The brick were open to inspection and their quality and condition was apparent. Negotiations for the sale began early in the year 1918 and were concluded when the sale was made in July of that year. The defendants’ business was that of buying and selling second hand machinery and junk, they had the fullest opportunity to examine the brick and they were in fact examined and inspected by each of the defendants. On the other hand, Bowen had not been in Martha’s Vineyard since 1912 and depended on Mr. Bennett for what knowledge he had concerning the brick, and Mr. Bennett relied on the caretaker of the premises, who referred to the large brick as fire brick and the other brick as face brick when speaking of them. Under these circumstances there was nothing to show that fraudulent statements were made by the plaintiff, inducing the defendants to make the purchase, and on which they relied. Mabardy v. McHugh, 202 Mass. 148, 151. American Malting Co. v. Souther Brewing Co. 194 Mass. 89, 96. Hillyer v. Dickinson, 154 Mass. 502, 508. Salem India Rubber Co. v. Adams, 23 Pick. 256, 265.
Exceptions overruled.
