74 Pa. Super. 73 | Pa. Super. Ct. | 1920
Opinion by
Plaintiff sued for the purchase price of a generator and certain fixtures bought by defendant by an order addressed to plaintiff, signed by defendant and accepted by plaintiff. The order, dated January 18, 1917, directs plaintiff to “furnish the following generator and appliances f. o. b. factory at Newark, New Jersey, to the undersigned, hereinafter referred to as the purchaser ......” At the foot of the order appears the acceptance of plaintiff dated January 22, 1917. Among other provisions is the following: “This order shall become a contract between the purchaser and the company upon acceptance thereof in the space below by one of the officers of said company; it being understood that this instrument, upon such acceptance, covers all the agreements between the purchaser and the company, and that no agent or representative of the company has made any statements or verbal agreements modifying or adding
In his affidavit of defense, defendant admits the receipt of the goods but avers that he shipped them back to plaintiff because “......the generator......was not of such character as the same was represented to me by the sales agent of the plaintiff company......,” setting forth at length the particulars of his objection, which, briefly stated, amount to breach of various express warranties. He avers that the making of these warranties by the “sales agent” was the “inducing cause which led me to sign the alleged contract.” The warranties are not contained in the written contract; to prove them will require evidence outside the paper. It is not alleged that anything was omitted by fraud, accident or mistake. The learned court below discharged a rule for judgment for want of a sufficient affidavit of defense, whereupon plaintiff appealed.
In substance the question is whether the parties to a sale by writing may agree therein that neither has been induced to sign save by what is written. To permit the defendant to contradict his written representation already quoted, will enable him to make a fraudulent use of the paper; after obtaining appellant’s acceptanceiby representing that the paper included the entire agreement and that anything not stated in it was excluded, defendant ought not be heard to aver that certain warranties were part of the contract, though not stated therein. The cases cited by the learned court below in refusing judgment : Chalfant v. Williams, 35 Pa. 212; Greenawalt v. Kohne, 85 Pa. 369; Keough v. Leslie, 92 Pa. 424, were cases where no provision like that before us was contained in the contract. This case is ruled by Dynamo and Engine Company v. Cement Co., 221 Pa. 160, where
The record is remitted to the court below, with direction to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why judgment should not be so entered.
